Baburao S/O Umaji Kawale and Thakaji S/O Gouba Tamkhane Vs. N.R.B. Salary Earner Cooperative Credit Society Ltd. Through Its President, - Court Judgment

SooperKanoon Citationsooperkanoon.com/368783
SubjectCivil;Trusts and Societies
CourtMumbai High Court
Decided OnNov-20-2009
Case NumberWrit Petition No. 5133 of 2009
JudgeB.R. Gavai, J.
Reported in2010(112)BomLR107
ActsMaharashtra CoOperative Societies Act - Sections 94; Code of Civil Procedure (CPC) - Order 41, Rule 3A - Order 9, Rule 4; Constitution of India - Article 227
AppellantBaburao S/O Umaji Kawale and Thakaji S/O Gouba Tamkhane
RespondentN.R.B. Salary Earner Cooperative Credit Society Ltd. Through Its President, ;n.R. Bearing Employees
Appellant AdvocateN.R. Solunke, Adv.
Respondent AdvocateS.G. Kendre, A.G.P. for State and ;K.J. Suryawanshi, Adv. for Respondent No. 1 and 2
DispositionPetition dismissed
Excerpt:
- bombay stamp act, 1958. schedule 1, article 36: [y.r. meena, cj & d.a. mehta & a.s. dave, jj] deed of mortgage liability to pay stamp duty held, any instruments in respect of transactions, relating to loans and advances, loans and mortgages, cash credit or overdraft bonds, agreements of pawn or pledge and letters of hypothecation executed by farmers for agricultural and land development purposes in favour of all commercial bank etc. are entitled to remission of entire duty chargeable under the stamp act with effect on and from 1.4.1979 under government notification dated 23.3.1979. thus, where loan was granted by bank of india under agricultural finance scheme towards purchase of air compressors, drilling rods and other accessories. use of the air compressors, drilling rods and other accessories in case of applicant who is a farmer can only be for purpose of drilling a bore-well for purpose of irrigation in process of carrying on agricultural activities. thus, it is apparent that loan was availed of by applicant-farmer for agricultural and land development purposes because a bore-well would go to increase the utility of agricultural land by ensuring round the year irrigation. the instrument in question would therefore fall within scope of complete remission granted to instrument of mortgage under government notification dated 23.3.1979 and hence not liable to stamp duty under article 36 of schedule i of the act. - 5. in the present case, the learned trial court on the basis of the evidence of the counsel, who was engaged on behalf of the disputant, has found that though the counsel had assured the disputant that he will intimate them about the progress in the matter, he had failed to do so. 11. no doubt sub-rule (1) of rule 3a has used the word 'shall' it was contended that employment of the word 'shall' would clearly indicate that the requirement is peremptory in tone. 10. it can thus clearly be seen that the apex court in unequivocal terms has held that though the word 'shall' is used in the provisions of rule 3a order xli, it need not be read as mandatory provision. the apex court has clearly held that the rule can not be interpreted very harshly and make the noncompliance punitive to an appellant.b.r. gavai, j.1. by way of present petition, the petitioner challenges the order dated 17/1/2009 passed by the learned cooperative judge in m.a. no. 100 of 2005 thereby allowing the application filed by the respondents for condonation of delay in filing an application for restoration of the dispute dismissed in default and the order dated 21/7/2009 thereby rejecting the revision filed by the petitioners.2. mr. solunke, the learned counsel for the petitioners submit that an application for restoration of the dispute was filed without filing an application for condonation of delay, though the application for restoration was admittedly find beyond limitation. he submits that only after it is pointed out by the petitioners that the restoration application was beyond limitation, an application for condonation of delay was filed. he further submits that an application for condonation of delay has been allowed without there being any valid reasons. he submits that the appellate court without considering the submissions on behalf of petitioner, has rejected the revision. the learned counsel relies on the judgments of the hon'ble apex court in the case of ragho singh v. mohan singh and ors. reported in 2001 air scw 2351, division bench of this court in the case of khatunbi wd/o mohammad sayeed and ors. v. aminabai w/o mohammad sabir reported in : 2006 (6) mh.l.j. 759 and of the learned single bench of this court in the case of special land acquisition officer (sip) and anr. v. jose prazeres de piedade pinto r/o old market and ors. reported in : 2006 (4) mh.l.j. 318.3. mr. suryawanshi, the learned counsel appearing on behalf of respondent nos. 1 and 2 submits that the learned cooperative court has given cogent reasons while allowing the application for condonation of delay and, therefore, no interference is warranted. he relies on the judgment of the single judge of this court in the case of madhao s/o somaji sarode v. jotiba dhyan upasak shikshan sanstha, dudhala and ors. reported in : 2004 (3) mh. l.j. 1078.4. a matter of condonation of delay is within the discretion of the court. unless it is noticed that the discretion is exercised in perversity, it would not be permissible for this court to sit in an appeal over the decision of the court, condoning the delay. it is equally settled law that the length of delay is not relevant. what is relevant is as to whether a party has been in a position to make out as to whether 'there was sufficient cause in condoning delay or not '. as to what is sufficient cause would also depend on the facts of each case.5. in the present case, the learned trial court on the basis of the evidence of the counsel, who was engaged on behalf of the disputant, has found that though the counsel had assured the disputant that he will intimate them about the progress in the matter, he had failed to do so. it has been found by the learned trial court that the statement which was made on oath by the counsel for the disputant had gone unchallenged. the learned trial court found that the party had made out a case for condoning delay by showing sufficient cause.6. in so far as the judgment of the apex court in case of ragho singh (cited supra), it can be seen that in the said case though the appeal was admittedly filed beyond limitation, no application was filed for condonation of delay and as such the apex court has found that in view of non filing of the application for condonation of delay and not condoning the delay, the appeal itself was liable to be dismissed.7. in so far as the judgment of the division bench of this court in the case of khatunbi (cited supra) is concerned, the division bench of this court considering the provisions of rule 3a of order xli of the code of civil procedure has observed that,when an appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant seeks to rely to satisfy the court that he had sufficient cause for not preferring the appeal within the prescribed period.in view of the words used in the said provision, it has been held that,in case there is delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter8. on perusal of section 94 of the maharashtra co-operative societies act, it will reveal that the provisions of the code of civil procedure would be applicable to the proceedings in a dispute as far as possible in the same manner as is provided in the code of civil procedure. however, it is to be noted that the application filed by the present petitioner was under order ix rule 4 of the code of civil procedure. the perusal of rule 4 order ix would reveal that there is no requirement to file an application for condonation of delay along with the application for restoration as is prescribed under rule 3a order xli.9. apart from that, it is to be noted that the provisions of order xli rule 3a are procedural in nature. merely because the word 'shall' is used in the said provision, it can not be said that the said provisions are mandatory in nature. it is further to be noted that the aforesaid judgment of the division bench is rendered on 28/6/2006. it is clear from the said judgment that the division bench of this court has not noticed the law laid down by the hon'ble apex court in the case of state of m.p. and anr. v. pradeep kumar and anr. reported in : 2000 (7) scc 372. the apex court in the said case observed thus,10. what is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of rule 3a it must be noted that the code indicates in the immediately preceding rule that the consequence of not complying with the requirements in rule i would include rejection of the memorandum of appeal. even so, another option is given to the court by the said rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. it is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. if the memorandum of appeal is filed in such appeal without an accompanying application to condone delay, the consequence can not be fatal. . the court can regard in such a case that there was no valid presentation of the appeal. in turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. only then the court can treat the appeal as lawfully presented. there is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. such defect can be cured by the party concerned and present the appeal without further delay.11. no doubt sub-rule (1) of rule 3a has used the word 'shall' . it was contended that employment of the word 'shall' would clearly indicate that the requirement is peremptory in tone. but such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. the word 'shall' in the context need be interpreted as an obligation cast on the appellant. why should a more restrictive interpretation be placed on the sub-rule the rule can not be interpreted very harshly and make the noncompliance punitive to an appellant. it can happen that due to some mistake or lapse, an appellant may omit to file the application (explaining the delay) along with the appeal.12. it is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those, who are vigilant and not those who sleep over their rights). but even a vigilant litigant is prone to commit mistakes. as the aphorism 'to err is human' is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. the effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.10. it can thus clearly be seen that the apex court in unequivocal terms has held that though the word 'shall' is used in the provisions of rule 3a order xli, it need not be read as mandatory provision. the apex court has clearly held that the rule can not be interpreted very harshly and make the noncompliance punitive to an appellant. the apex court has held that the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. it is further held that the effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance, if it is genuine.11. in view of the judgment of the apex court cited supra, it will have to be held that the decision of the division bench of this court in the case of khatunbi (cited supra), in so far as it is held that in case of delay in filing the appeal, the memo of appeal shall be accompanied by an application for condonation of delay, would not be a correct position of law.12. in so far as the judgment of the learned single judge in case of special land acquisition officer (cited supra), a same view has been taken interpreting the provisions of rule 3a rule xli. as i have already discussed that in view of the law laid down by the apex court in case of state of m.p. (cited supra), the said judgment does not lay down correct position of law.13. in that view of the matter, no merit is found in the petition. the petition is found without there being any substance. it can not be said that the discretion exercised by the learned trial court which has been confirmed by the learned appellate court, has been exercised with perversity. as no perversity is noticed, interference under extra ordinary jurisdiction under article 227 of the constitution of india would not be warranted. the writ petition is, therefore, dismissed with no order as to costs.14. at this stage, mr. solunke, the learned counsel appearing on behalf of petitioner requests for continuation of stay for the period of 4 weeks from today. however, in the light of the view that i have taken, i am not inclined to grant the said prayer. the said prayer is also rejected.
Judgment:

B.R. Gavai, J.

1. By way of present petition, the petitioner challenges the order dated 17/1/2009 passed by the learned Cooperative Judge in M.A. No. 100 of 2005 thereby allowing the application filed by the respondents for condonation of delay in filing an application for restoration of the dispute dismissed in default and the order dated 21/7/2009 thereby rejecting the Revision filed by the petitioners.

2. Mr. Solunke, the learned Counsel for the petitioners submit that an application for restoration of the dispute was filed without filing an application for condonation of delay, though the application for restoration was admittedly find beyond limitation. He submits that only after it is pointed out by the petitioners that the restoration application was beyond limitation, an application for condonation of delay was filed. He further submits that an application for condonation of delay has been allowed without there being any valid reasons. He submits that the appellate court without considering the submissions on behalf of petitioner, has rejected the Revision. The learned Counsel relies on the Judgments of the Hon'ble Apex Court in the case of Ragho Singh v. Mohan Singh and Ors. reported in 2001 AIR SCW 2351, Division Bench of this Court in the case of Khatunbi Wd/o Mohammad Sayeed and Ors. v. Aminabai w/o Mohammad Sabir reported in : 2006 (6) Mh.L.J. 759 and of the learned single Bench of this Court in the case of Special Land Acquisition Officer (SIP) and Anr. v. Jose Prazeres De Piedade Pinto r/o Old Market and Ors. reported in : 2006 (4) Mh.L.J. 318.

3. Mr. Suryawanshi, the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 submits that the learned Cooperative Court has given cogent reasons while allowing the application for condonation of delay and, therefore, no interference is warranted. He relies on the Judgment of the Single Judge of this Court in the case of Madhao S/o Somaji Sarode v. Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala and Ors. reported in : 2004 (3) Mh. L.J. 1078.

4. A matter of condonation of delay is within the discretion of the Court. Unless it is noticed that the discretion is exercised in perversity, it would not be permissible for this Court to sit in an appeal over the decision of the Court, condoning the delay. It is equally settled law that the length of delay is not relevant. What is relevant is as to whether a party has been in a position to make out as to whether 'there was sufficient cause in condoning delay or not '. As to what is sufficient cause would also depend on the facts of each case.

5. In the present case, the learned trial court on the basis of the evidence of the counsel, who was engaged on behalf of the disputant, has found that though the counsel had assured the disputant that he will intimate them about the progress in the matter, he had failed to do so. It has been found by the learned trial court that the statement which was made on oath by the counsel for the disputant had gone unchallenged. The learned trial court found that the party had made out a case for condoning delay by showing sufficient cause.

6. In so far as the Judgment of the Apex Court in case of Ragho Singh (cited supra), it can be seen that in the said case though the Appeal was admittedly filed beyond limitation, no application was filed for condonation of delay and as such the Apex Court has found that in view of non filing of the application for condonation of delay and not condoning the delay, the Appeal itself was liable to be dismissed.

7. In so far as the Judgment of the Division Bench of this Court in the case of Khatunbi (cited supra) is concerned, the Division Bench of this Court considering the provisions of Rule 3A of Order XLI of the Code of Civil Procedure has observed that,

when an Appeal is presented after the expiry of the period of limitation, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant seeks to rely to satisfy the Court that he had sufficient cause for not preferring the Appeal within the prescribed period.

In view of the words used in the said provision, it has been held that,

In case there is delay in filing the appeal, then such application should be filed along with the memo of appeal and not thereafter

8. On perusal of Section 94 of the Maharashtra Co-operative Societies Act, it will reveal that the provisions of the Code of Civil Procedure would be applicable to the proceedings in a dispute as far as possible in the same manner as is provided in the Code of Civil Procedure. However, it is to be noted that the application filed by the present petitioner was under Order IX Rule 4 of the Code of Civil Procedure. The perusal of Rule 4 Order IX would reveal that there is no requirement to file an application for condonation of delay along with the application for restoration as is prescribed under Rule 3A Order XLI.

9. Apart from that, it is to be noted that the provisions of Order XLI Rule 3A are procedural in nature. Merely because the word 'shall' is used in the said provision, it can not be said that the said provisions are mandatory in nature. It is further to be noted that the aforesaid Judgment of the Division Bench is rendered on 28/6/2006. It is clear from the said Judgment that the Division Bench of this Court has not noticed the law laid down by the Hon'ble Apex Court in the case of State of M.P. and Anr. v. Pradeep Kumar and Anr. reported in : 2000 (7) SCC 372. The Apex Court in the said case observed thus,

10. What is the consequence if such an appeal is not accompanied by an application mentioned in Sub-rule (1) of Rule 3A It must be noted that the Code indicates in the immediately preceding Rule that the consequence of not complying with the requirements in Rule I would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said Rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without an accompanying application to condone delay, the consequence can not be fatal. . The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay.

11. No doubt Sub-rule (1) of Rule 3A has used the word 'shall' . It was contended that employment of the word 'shall' would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word 'shall' in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the Sub-rule The Rule can not be interpreted very harshly and make the noncompliance punitive to an appellant. It can happen that due to some mistake or lapse, an appellant may omit to file the application (explaining the delay) along with the appeal.

12. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those, who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism 'to err is human' is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.

10. It can thus clearly be seen that the Apex Court in unequivocal terms has held that though the word 'shall' is used in the provisions of Rule 3A Order XLI, it need not be read as mandatory provision. The Apex Court has clearly held that the Rule can not be interpreted very harshly and make the noncompliance punitive to an appellant. The Apex Court has held that the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. It is further held that the effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance, if it is genuine.

11. In view of the Judgment of the Apex Court cited supra, it will have to be held that the decision of the Division Bench of this Court in the case of Khatunbi (cited supra), in so far as it is held that in case of delay in filing the appeal, the memo of appeal shall be accompanied by an application for condonation of delay, would not be a correct position of law.

12. In so far as the Judgment of the learned single Judge in case of Special Land Acquisition Officer (cited supra), a same view has been taken interpreting the provisions of Rule 3A Rule XLI. As I have already discussed that in view of the law laid down by the Apex Court in case of State of M.P. (cited supra), the said Judgment does not lay down correct position of law.

13. In that view of the matter, no merit is found in the petition. The petition is found without there being any substance. It can not be said that the discretion exercised by the learned trial court which has been confirmed by the learned appellate court, has been exercised with perversity. As no perversity is noticed, interference under extra ordinary jurisdiction under Article 227 of the Constitution of India would not be warranted. The Writ Petition is, therefore, dismissed with no order as to costs.

14. At this stage, Mr. Solunke, the learned Counsel appearing on behalf of petitioner requests for continuation of stay for the period of 4 weeks from today. However, in the light of the view that I have taken, I am not inclined to grant the said prayer. The said prayer is also rejected.