TMI Blog2016 (9) TMI 1612X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted under the 1996 Act, including execution of the arbitration Award made under the said Act. The question before the High Court was whether proceedings initiated under the old Act could continue under the said Act. 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. The opportunity to have the sale certificate set aside under Rule 37(13) has not been availed. Ground V of the Writ Petition is in reality a ground relatable to Rule 37(14), as, according to the Petitioner, there is a material irregularity in conducting the sale. For the Petitioner to make out such a ground, he has first to apply to the recovery officer within 30 days from the date of sale. And further, the Appellant has to make out a 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said award for execution to the Sale and Recovery Officer, Regional Office at Verem, Goa. The said Recovery Officer issued a proclamation notice for sale by public auction of the mortgaged property by publishing a notice dated 2.1.2002 which was duly published in the Daily Herald on 5.1.2002. Nobody came forward in response to the said notice. Between January 2002 and February 2007 several proclamation notices were issued-six in all-to sell the said mortgaged property, but no bidders came forward to purchase the said property. The Bank then decided to sell the said mortgaged property by adopting the mode of selling property by sealed tender. Accordingly, the Sale and Recovery Officer issued a tender notice dated 18.3.2007 calling for sealed tenders. The said notice was published in a local newspaper The Tarun Bhagat also of the same date. As per the said tender notice, sealed quotations were invited from the public on or before 23.3.2007. 5. Two sealed tenders were received on 20.3.2007. A bid of ₹ 86,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 further argued that even if the impugned judgment were to be set aside, other points remained to be argued in the Writ Petition so that the matter could then be remanded back to the High Court for further consideration of these other points. 10. We have heard learned Counsel for the parties. Before dealing with the contentions raised before us it will be important to set out some of the relevant statutory provisions. Multi-State Co-operative Societies Act, 1984 74. (1) Notwithstanding anything contained in any other law for the time being in force, if any dispute (other than a dispute regarding disciplinary action taken by a multi-State co-operative society against its paid employee or an industrial dispute as defined in Clause (k) of Section 2 of the Industrial Disputes Act, 1947) touching the constitution, management or business of a multi-State co-operative society arises- (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) transfer it for disposal to any other person who has been invested by the Central Government with powers in that behalf. (2) The Central Registrar may withdraw any reference transferred under Clause (b) of Sub-section (1) and decide it himself or refer the same for decision to any other person who has been invested by the Central Government with powers in that behalf. (3) The Central Registrar or any other person to whom a dispute is referred for decision under this Section may, pending the decision of the dispute, make such interlocutory orders as he may deem necessary in the interest of justice. 85. Execution of decision, etc.-Every decision or order made Under Section 30. Section 31, Section 73, Section 76, Section 90, Section 92 or Section 93 shall, if not carried out.- (a) on a certificate signed by the Central Registrar or any person authorized by him in writing in this behalf, be deemed to be a decree of a civil court and shall be executed in the same manner as if it were a decree of such court; or (b) where the decision or order provides for the recovery of money, be executed according to the law for the time being in force for the recovery of arrears of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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; (c) Any dispute arising in connection with the election of any officer of a multi-State co-operative society. (3) If a question arises whether a dispute referred to arbitration under this Section is or is not a dispute touching the constitution, management or business of a multi-State co-operative society, the decision thereon of the arbitrator shall be final and shall not be called in question in any court. (4) Where a dispute has been referred to arbitration under Sub-section (1), the same shall be settled or decided by the arbitrator to be appointed by the Central Registrar. (5) Save as otherwise provided under this act, the provisions of the Arbitration and Concil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or done under the corresponding provisions of this Act. (3) Every multi-State co-operative society, existing immediately before the commencement of this Act which has been registered under the Co-operative Societies Act, 1912 (2 of 1912) or under any other Act relating to co-operative societies in force, in any State or in pursuance of the provisions of the Multi-unit Co-operative Societies Act, 1942 (6 of 1942) or the Multi-State Co-operative Societies Act, 1984 (51 of 1984), shall be deemed to be registered under the corresponding provisions of this Act, and the bye-laws of such society shall, in so far as they are not inconsistent with the provisions of this Act, or the rules, continue to be in force until altered or rescinded. (4) All appointments, Rules and orders made, all notifications and notices issued and all suits and other proceedings instituted under any of the Acts referred to in Sub-section (1) shall, in so far as they are not inconsistent with the provisions of this Act, be deemed to have been respectively made, issued and instituted under this Act, save that an order made cancelling the registration of a multi-State co-operative society shall be deemed, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For this, it is important to advert to Section 126(6), which has been completely missed by the High Court. By this Section, any legal proceeding pending before any authority at the commencement of the 2002 Act shall be continued to be before that authority as if the 2002 Act had not been passed. 15. The expression legal proceeding has been the subject matter of consideration in the Federal Court decision in Governor-General in Council v. Shiromani Sugar Mills Ltd. AIR 1946 FC 16. In that decision Section 171 of the Indian Companies Act, 1913 came up for consideration. That Section reads as follows: When a winding-up order has been made or a provisional liquidator has been appointed, no suit or other legal proceeding shall be proceeded with or commenced against the company except by leave of the court, and subject to such terms as the court may impose. 16. The Federal Court held that the expression other legal proceedings in Section 171 of the Indian Companies Act, 1913 comprises any proceeding initiated by the revenue for recovery of tax dues under the Indian Income Tax Act. There is no warrant for a narrow construction of such expression as meaning 'proceedings o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (VI) of the Writ Petition which read as follows: (V) The Petitioner further submits that the said Sale Certificate issued by Respondent No. 2 pursuant to the notice dated 17.3.2007 is also void being passed under the colour of powers, in as much as the Respondent No. 2 could not give a go-bye to the mandate of Rule 36 of the Multi-State Co-operative Societies Rules and decided to hold the auction and/or open the tenders in a period short of 15 days, in as much as the said Rule does not provide for relaxation. On the other hand, it mandates that the notice shall be of a period of 15 days. (VI) The entire action of the Respondent No. 2 is malafide and meant to favour of the Respondent No. 3 in as much as facts stated above make it clear that, that apart, the conduct of the Respondents in not providing the certified copies of the proceedings and keeping the Petitioner in the dark when she is the owner of the property and surreptitiously seeking to hold the auction giving a go-bye to the statutory requirements makes it clear that the Respondent No. 2 acted malafide with respect and which act vitiates the entire proceedings. 22. We find that after six failed attempts to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the sale was ordered together with interest thereon and the expenses of attachment, if any, and sale and other costs due in respect of such amount, less amount which may since the date of such proclamation have been received by the decree-holder. (b) If such deposit and application are made within thirty days from the date of sale, the recovery officer shall pass an order setting aside the sale and shall repay to the purchaser, the purchase money so far as it has been deposited, together with five per cent deposited by the applicant: Provided that if more than one person have made deposit and application under this sub-rule, the application of the first depositor to the officer authorised to set aside the sale, shall be accepted. (c) If a person applies under Sub-rule (14) to set aside the sale of immovable property, he shall not be entitled to make an application under this sub-rule. (14) (i) At any time within thirty days from the date of sale of immovable property, the decree-holder or any person entitled to share in a rate able distribution of the assets or whose interests are effected by the sale, may apply to the recovery officer to set aside the sale on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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