Shri Murlidhar Datoba Nimanka, ... vs Shri Harish Balkrushna Latane, ...
2003 Latest Caselaw 318 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard learned advocates for the parties. Perused the records. Rule. By consent, the rule is made returnable forthwith.

2. The Petitioners challenge the judgment and order dated 16.10.2002 passed by Maharashtra State Cooperative Appellate Court, Pune in Appeal against order No. 194 of 2002. By the impugned order, the Appellate Court has allowed the appeal filed by the Respondents against the order dated 3.10.2002 passed by the Cooperative Court, Kolhapur in SCCK No. 1238 of 2002. by the said order, the Cooperative court had rejected the application filed by the Respondents for action under Order 39 Rule 3 of Code of Civil Procedure against the Petitioners. Consequent to the appeal being allowed by the impugned order, the Cooperative Appellate Court had set aside the said order of the Cooperative Court and has allowed the application filed by the Respondents to strike off the defence of the Petitioners in exercise of powers under Order 39 Rule 11 of Code of Civil Procedure, and accordingly, the defence of the Petitioners has been struck off. In the process, the lower Appellate Cooperative Court has also dismissed the appeal filed by the Petitioners in relation to certain observations made by the Cooperative Court in its order dated 3.10.2002.

3. The challenge to the impugned order is on the ground that the provisions of Order 39 Rule 11 of C.P.C. are not applicable to the Cooperative Court in view of various specific provisions contained in the Maharashtra Cooperative Societies Act, 1960 (hereinafter called as 'the said Act') and Maharashtra Cooperative Societies Rules, 1961 (hereinafter called as 'the said Rules').

4. Drawing attention to Section 94 and Section 148A of the said Act as well as Section 2(21) thereof, and relying upon decision of the learned Single Judge of this Court in Khandesh Urban Cooperative Credit Society Limited v. Ashok s/o. Rameshwar Agarwal reported in 2002 (4) All.M.R. 91, the learned Advocate for the Petitioner has submitted that there being specific procedure prescribed for the hearing and disposal of the disputes arising under the said Act before the Cooperative court, the question of applicability of the provisions of Order 39 Rule 11 of C.P.C. does not arise and, therefore, the lower Appellate Court erred in invoking the powers under the said provisions of the law despite the fact that the lower Appellate Court had no such jurisdiction and hence, the impugned order is bad in law. On the other hand, relying upon the decisions in the matter of Bapusaheb Balasaheb Patil v. State of Maharashtra reported in 1974 Mh.L.J. 958, Sahadat Khan v. Mohammad Hussain , Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt. Ltd. and Ors. , Ramsingh v. State of Rajasthan and Ors. , Ratnakar D.

Patade v. Smita Pandurang Dalvi and Ors. , Maharashtra Co-op. Courts Bar Association, Bombay and Ors. v. State of Maharashtra and Ors. reported in 1990 Mh.L.J. 1064 and Reliance Industries Ltd. v. Pravinbhai Jasbhai Patel and Ors. , it was sought to be contended by the learned Counsel for the Respondents that in the absence of specific provision on par with Order 39 Rule 11 of C.P.C. in the said Act or the said Rules, and considering the provisions of Section 4 of C.P.C., the Cooperative Court has jurisdiction to exercise powers under the said provisions of law and, therefore, no fault can be found with the impugned order.

5. The only point which arises for considering in the matter is, therefore, whether the Cooperative Courts are governed by the provisions of the Code of Civil Procedure and in case the answer is in negative, then as a corollary, whether in the absence of provisions similar to the C.P.C. either in the said Act or the said Rules, can the Cooperative courts exercise the powers of the Civil Court specified under the C.P.C. ?

6. It is well-settled that the provisions of law contained in C.P.C. would apply to all the proceedings arising under a special or local Act before the Civil Courts, unless specifically excluded by any provision to that effect in the special or local Act; and it is not permissible to exclude the applicability of the provisions of C.P.C. to such proceedings by mere inference on the basis of absence of specific provision in such special or local Act about the applicability of C.P.C. to those proceedings. This is well-settled law and reiterated by the Apex Court in its recent decision in the matter of I.T.I. Ltd. v. Siemens Public Communication Network Ltd. .

However, the said proposition of law cannot be applicable in cases where the jurisdiction of Civil Courts to deal with the matters arising under such special or local Act is specifically excluded and the jurisdiction is exclusively given to the Courts or Tribunals constituted under such Act, further providing specific procedure for hearing of the cases arising under such Act before those Courts or Tribunals. It is, therefore, necessary to consider the entire scheme of the said Act and the said Rules before arriving at any conclusion on the point for consideration which arises in the matter.

7. Scanning through the said Act, it would reveal that the same not only deals with the procedure relating to the formation, registration and management of cooperative societies but it elaborately provides for dispute resolution mechanism. Of course, the disputes spoken of are essentially in relation to the affairs of the cooperative society and its members. The provisions of law contained in Chapter I to VII of the said Act deal with the registration, incorporation, duties and privileges of such societies, the State aid of such societies, relating to the properties, funds and management of such societies, etc. The supervisory control over the administration and financial management of such societies by the Government is sought to be provided by the provisions of law contained in Chapter VIII & IX of the said Act. The Chapter IX, XII & XIII relate to the adjudication process of disputes pertaining to the cooperative societies and its members, in respect of affairs of cooperative societies and connected matters and not only provides a detailed procedure for the same but also take care to ensure due performance of the decisions arrived at by the cooperative Courts on conclusion of such adjudication and further provides for penalties in case of non compliance of such decisions. In fact, the entire scheme of the said Act not only encompasses within its ambit, the dispute resolution mechanism but also excludes the jurisdiction of the Civil Court in that regard.

8. Section 2 of the said Act defines various terms and expressions used in the said Act. Thereunder, the term "Cooperative Court" has been defined under Section 2(10-a-ii) to mean a Court constituted under the said Act to decide disputes referred to it under any of the provisions of the said Act. The term "Cooperative Appellate Court" has been defined under Section 2(10-a-i) of the said Act to mean the Maharashtra State Cooperative Appellate Court constituted under the said Act and Section 2(21) defines the term "prescribed" to mean prescribed by the rules and Section 2(26) defines the term "rule" means those made under the said Act.

9. Chapter IX of the said Act deals with the subject of settlement of disputes which can be referred to such Courts. Section 91 thereof speaks about the disputes in general and Section 91A deals with the subject of Constitution of Cooperative Courts. Section 94 relates to the subject of "Procedure for settlement of disputes and power of Cooperative Court". Section 95 deals with the subject of attachment before award or orders and interlocutory orders. Section 96 pertains to the subject of decision of Cooperative Court. Section 97 provides for the appeal against the decision under Section 98 and orders under Section 95 as well as the jurisdiction of the Cooperative Appellate Court in that regard. Section 98 speaks of recovery of money in execution of the award. Chapter XII relates to offences and penalties. Section 146 relates to offences under the said Act and Section 147 pertains to penalties for the same. Section 149 pertains to the powers of the appellate Court. Section 148-A deals with the provisions relating to punishment for contempt of Court. Chapter XIII of the said Act consists of provisions relating to appeal, review and revision. Section 163 pertains to bar of jurisdiction of the Civil Courts in relation to the matters to be dealt with the decided by the Cooperative Courts and about the finality of decisions of Cooperative Court. Section 165 deals with the powers of the State Government to frame rules for carrying out the proposes of the said Act. Accordingly, the said Rules have been framed in exercise of the powers conferred under Section 165 of the said Act read with the provisions of law contained in Section 22 of the Bombay General Clauses Act, 1904.

10. Sub-section (1) of Section 94 of the said Act provides that the Cooperative Court hearing a dispute under the provisions of law contained in the said Act shall hear the dispute in the manner prescribed and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them and to compel them to give evidence on oath, affirmation or affidavit, and to compel the production of the documents by the same means and as far as possible in the same manner as is provided in the case of Civil Court by the Code of Civil Procedure, 1908. Sub-section (ii) provides that except with the permission of the Cooperative Court, no parties shall be represented at the hearing of a dispute by a legal practitioner. Clause (a) of Sub-section (3) provides that if the Cooperative Court is satisfied that a person whether he be a member of the society or not has acquired any interest in the property of a person who is a party to a dispute it may order, that the person who has acquired the interest in the property may join as a party to the dispute and any decision that may be passed on the Reference by the Cooperative Court shall be binding on the party so joined, in the same manner as if he were an original party to the dispute. Clause (b) thereof provides that where a dispute has been instituted in the name of the wrong person or where all the defendants have not been included, the Cooperative Court may at any stage of the hearing of the dispute if satisfied that the mistake was bonafide or order any other person to be substituted or added as a plaintiff or a defendant upon such terms as it thinks just. Clause (c) of Sub-section (3) provides that the Cooperative Court may at any stage of the proceedings either upon or without application of either party, and on such terms as may appear to the Co-operative Court, to be just, order that the name of any party improperly joined whether as plaintiff or defendant, be struck out, and the name of any person who ought to have been joined whether as the plaintiff or defendant or whose presence before Cooperative Court may be necessary in order to enable the Cooperative Court effectually and completely to adjudicate upon and settle all the questions involved in the dispute be added. Clause (d) provides that any person who is a party to the dispute and entitled to more than one relief in respect of the same cause of action may claim all or any such reliefs but if he omits to claim for all such reliefs he shall not forward a claim for any reliefs so omitted except with the leave of the Cooperative Court. Sub-section (3A) of Section 94 provides that in any case in which a dispute is decided by the Cooperative Court ex-parte against any person, he may apply to the Court within 30 days from the date of decision to set ti aside and if he satisfies the Court that there was sufficient cause for his failure to appear when the dispute was called and heard, the Court shall make order setting aside the decision as against him, upon such terms as to the cost, payment into Court or otherwise as it thinks fit and appoint a day for hearing and deciding the dispute so far as it relates to him. Sub-section (4) thereof provides that save and otherwise as directed by the State Government in any case or class of cases, every dispute shall be decided in such summary manner as may be prescribed and as expeditiously as possible.

11. Sub-section (1) of Section 95 of the said Act provides that where a dispute has been referred to the Cooperative Court under Section 93 or 105 or whether the Registrar or the person authorised under Section 88 hears a person against whom charges are framed under that section and the Cooperative Court or the Registrar or the authorised person as the case may be is satisfied on enquiry or otherwise that a party to such dispute or the person against whom the proceedings are pending under Section 88, with intent, to defeat, delay or obstruct the execution of any award or the carrying out of any order that may be made, either is about to dispute of the whole or any part of his property, or is about to remove the whole or in part of his property from its or his jurisdiction, the Court or the Registrar or the authorised person as the case may be, may unless adequate security is furnished, direct conditional attachment of the said property and such attachment shall have the same effect as if made by a competent civil Court. Sub-section (2) thereof provides that where attachment of property is directed under Sub-section (1) of Section 95, the Cooperative Court or the Registrar or the authorised person as the case may be shall issue a notice calling upon the person whose property is so attached to furnish security as it or he thinks adequate within a specified period. If the person fails to provide the security so demanded, the authority issuing the notice may confirm the order and, after decision in the dispute for completion of the proceedings under Section 88, may direct the disposal of the property so attached towards the claim if awarded. Sub-section (3) provides that the attachment under the said section shall not affect the rights subsisting prior to the attachment of the property, of persons not parties to the proceedings in connection with which the attachment is made, or bar any person holding a decree against the person whose property is attached from applying for the sale of the property under attachment in execution of such decree. Sub-section (4) provides that the Cooperative Court, the Registrar or the authorised person, as the case may be, may in order to prevent the ends of justice being defeated make such interlocutory orders pending the decision in a dispute referred to in Sub-section (1) as may appear to be just and convenient.

12. Section 96 of the said Act provides that when a dispute is referred to arbitration, the Cooperative Court may after giving a reasonable opportunity to the parties to the dispute to be heard, make an award on dispute, on the expenses incurred by the parties to the dispute in connection with the proceedings, and fees and expenses payable to the Cooperative Court. In case of money claim preferred by the society against a member, the amount of award representing the interest shall not be less than the amount of interest accrued thereon in accordance with the contractual rate of interest, but where such money claim relates to any loan referred to in Section 44A, the provisions of that section shall apply to such money claim as they apply to loan under Section 44A.

13. Section 98 of the said Act provides that in relation to every order passed by the Cooperative Court under Section 95 or 96 of the said Act as well as by the Cooperative Appellate Court under Section 97 if not complied with on certificate signed by the Cooperative Court shall be deemed to be a decree of Civil Court had shall be executed in the same manner as a decree of the Civil Court or can be executed according to the law and under the Rules for the time being in force for recovery of arrears of land revenue. It also prescribed time limit of 12 years for the purpose of seeking execution of such orders from the date fixed in the order for compliance of such order and in case no such date is fixed then from the ate of the order.

14. Section 146 of the said Act pertains to the powers relating to the offences under the said Act and in terms of Clause (m) thereof, if any officer or a member of a society wilfully fails to comply with any decision, award or order passed under Section 96 of the said Act is liable to be prosecuted and punished in terms of Section 147(m), with imprisonment for a term which may extend to 6 months or with fine which may extend to Rs. 500/- or with both. Further, Section 148A empowers the Cooperative Court to make a report to the Magistrate in relation to any case of disobedience by any of the parties to the dispute before the Cooperative Court in respect of any order to produce or deliver any document or furnish information which such party is legally bound to do but intentionally omits to do or in case when required by such Court to bind himself by an oath or affirmation to state the truth refuses to do so and the Magistrate to whom such report is forwarded is empowered to proceed with the matter in the same manner as provided in Code of Criminal Procedure, 1973. Further, a person trying to act in a manner which amounts to contempt of Cooperative Court can be also be punished having been found guilty of contempt of such authorities pursuant to report in that regard being made to the High Court and the provisions in that regard are also to be found in Section 148A.

15. Section 149 of the said Act pertains to the Appellate Court and its powers and Sub-section (1) thereof provides that the Cooperative Appellate Court constituted under the said Act is to exercise the powers and discharge the functions conferred upon it by or under the said Act. Sub-section (7) thereof provides that subject to the provisions of sanction of the State Government, the Cooperative Appellate Court shall frame regulations consistent with the provisions of the said Act and the said Rules for regulating its procedure and disposal of its business. Sub-section (9) thereof provides that the Cooperative Appellate Court may call for and examine the record of any proceeding in which an appeal lies to it, for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and if in any case it appears to the Cooperative Appellate Court that any such decision or order should be modified, annulled or reversed, the Cooperative Appellate Court may pass such order thereon as it may deem just. Sub-section (10) thereof provides that where an appeal or application is made to the Cooperative Appellate Court under the said Act, it may in order to prevent the ends of justice being defeated, make such interlocutory order pending the decision of the appeal or application as the case may be, may appear to it to be just and convenient, or to prevent the abuse of the process of the Cooperative Appellate Court. Sub-section (11) thereof declares that an order passed in appeal or in revision under Sub-section (9) or in review under Section 150 by the Cooperative Appellate Court shall be final and conclusive and shall not be called in question in any Civil or Revenue Court. Section 150 of the said Act pertains to review powers of the Cooperative Appellate Court and provides that the Appellate Court may either on an application of the Registrar or on an application of any interested party review its own order in any case, and pass in reference thereto such order as it thinks just provides that no such application made by the party interested shall be entertained unless the Cooperative Appellate Court is satisfied that there has been discovery of and important matter of evidence, which after exercise of diligence was not within the knowledge of the applicant or could not be produced by him at the time when its order was made or that there has been some mistake or error apparent on the face of the record or for any other sufficient reason, provided further that no such order shall be varied or revised unless notice has been given to the parties interested to appear and be heard in support of the order.

16. Section 163 of the said Act provides that save as expressly provided in the said Act no Civil or Revenue Court shall have any jurisdiction in respect of any dispute required to be referred to the Cooperative Court for decision and of orders, decisions and awards passed in accordance with the said Act and the said Rules shall, subject to the provisions of the appeal or revision under the said Act shall be final and no such order or decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any Court upon the merits or upon any other ground whatsoever.

17. Section 165 of the said Act empowers the State Government to frame Rules for carrying out the purposes of the said Act and specifically in relation to the form in which a dispute shall be referred to the Cooperative Court, issue and service of process, investigation of claims and objections to the attachment effected under Section 95, procedure for and method of recovery of any sum due under the said Act or the said Rules, procedure for attachment of the property and custody of the attached property as well as for execution of awards and for the purposes of prosecuting and disposing appeals, communication and publication for the orders and awards under the said Act and in relation to the contravention of any of the Rules or decisions under the said Act and Rules.

18. Chapter VIII of the said Rules deals with the subject of disputes and arbitration under the said Act. Thereunder Rule 75 prescribes the method for referring the dispute to the Registrar. Rule 76 speaks of necessity of Registrar's satisfaction regarding the existence of dispute for its reference to the Court for adjudication and Rule 77 pertains to the powers of the Registrar to dispose of the disputes by himself or reference thereof to the Cooperative Court having jurisdiction and further application of the parties to pay necessary Court fees for the purpose of determination of the dispute. Rule 77E pertains to procedure for hearing and decision of disputes. Rule 77F speaks of summary procedure for deciding the disputes. Rule 78 relates to the subject of summonses, notices, etc. relating to the disputes and a manner of service thereof. Rule 79 pertains to the investigation of claims and objections against attachment. Rule 80 deals with the procedure for custody of the property attached under Section 95. Rule 82 relates to issuance of proclamation relating to properties. Rules 83 & 84 deal with the procedure for execution of awards and Rule 86 pertains to the payment of fees for decision of disputes.

19. Rule 77-E of the said Rules deals with the procedure for hearing and decision of the disputes by the Cooperative Courts. Sub-rule (1) thereof provides that upon evidence being recorded either in English, Marathi or Hindi of the parties and their witnesses and upon consideration of the documentary evidence produced by the parties the Court shall pronounce the decision either at once or as soon as practicable or any future date with due notice to the parties. Sub-rule (2) empowers the Cooperative Court to dismiss the dispute in case of default in appearance by the parties. Sub-rule (3) provides that where the opponent appears and the disputant does not appear at the time the dispute is called out for hearing, the Court may order the dispute to be dismissed unless the opponent admits the claim or part thereof in which case the Court may make an order against the opponent upon such admission and where the part only of the claims is admitted, may dismiss the dispute so far as it relates to the remainder. Sub-rule (4) thereof provides that where the disputant appears and the opponent does not appear when the dispute is called out for hearing then if the Court is satisfied from the record and the proceedings that the summons was duly served, the Court may proceed ex-parte. It also provides that where the summons is served by the officer of the Registrar or the Court he shall make his report of service on oath. Sub-rule (5) empowers the Court to grant adjournments with the rider that ordinarily adjournment could not be granted for more than two occasions to each of the parties. It also empowers the Court to grant further adjournment subject to the payment of costs at whose instance the adjournment is granted. Sub-rule (6) speaks about the rights of the parties to obtain certified copies of the orders, judgment and awards on payment of copying fees at the rate of 50ps. per 100 words.

20. Rule 77-F of the said Rules prescribes the summary procedure for deciding disputes. Sub-rule (1) provides that subject to the provisions of Sub-section (4) of Section 94 of the said Act, the dispute specified under the subrule at the desire of the disputant shall be decided in the summary manner prescribed under the said rules. The dispute enumerated thereunder are relating to recovery of debt upon promissory note, hundi, bill of exchange, bond for recovery of fixed sum of money in the nature of debt with or without interest arising on a written contract but other than the penalty or guarantee, for recovery of price of goods sold and delivered where the rate, quality and quantity are admitted in writing and disputes for recovery of dues payable in respect of tenements by a member of the housing society towards the contribution for construction of the tenement in respect of the repayment of any loan, interest on loan, ground rent, local authority taxes, sinking fund, water charges, electric charges, repair, maintenance and unkeep charges or charges for other services rendered by the society and the interest on such arrears payable under a written agreement or the bye-laws or tenancy regulations. In terms of Sub-rule (2) in the cases of the nature enumerated under Sub-rule (1), the disputant is required to furnish additional material as specified thereunder. Sub-rule (3) provides that in the cases enumerated in Sub-rule (1), the opponent is not entitled to defend the claim unless he obtains the leave of the Court to defend and in default of obtaining such leave or of his appearance and defence in pursuance of such leave, the allegations in the petition are to be deemed as admitted and thereupon the disputant would be entitled to an award in his prayer as prayed and for the cost to be awarded by the Court in his favour. Sub-rule (4) speaks about the procedure to be followed for obtaining the leave to defend by the opponent and the order by the Court in relation to such leave to defend as well as the conditions which may be imposed while granting such leave. It also empowers the Court to excuse the delay in applying for leave to defend for sufficient cause to be made by the opponent. It further empowers the Court to pass an award in case of failure to comply with the conditions regarding leave to defend. In fact, Clause

(ii) of Sub-rule (4) of Rule 77F provides that "the Registrar or the Court, on reading the affidavits and declarations and on hearing the parties and their pleading and considering the documents relied on and produced by them, may pass an award or grant leave to defend to such of the opponents, unconditionally or upon such conditions, as the deciding authority may think fit under the circumstances and on facts of the case. The Registrar or the Court granting leave to defend shall also give directions and prescribe time limit for filing the written statement and fix the date for hearing. Leave may be granted to some any may be refused to other opponents. If leave is granted and not complied with by any opponent, the deciding authority may pass an award against him, as if he had not been granted leave. "Clause (iii) of Sub-rule (4) of Rule 77F provides that "if the conditions on which leave to defend is granted are not complied with by any opponent, the Registrar or the Court may pass an award against him, as if he had not been granted leave." Clause (v) of Sub-rule (4) provides that the Court may under special circumstances set aside the award and if necessary stay or set aside the execution and may give leave to the opponent to appear and defend the dispute, if it seems reasonable to the deciding authority so to do, and on such terms as it thinks fit."

21. Rule 78 of the said Rules deals with the summonses, notices and fixing of dates, place, etc. in connection with the disputes. It deals with the procedure regarding issues relating to service of summonses, notices as well as fixing of dates for hearing of the dispute elaborately and taking into consideration of circumstances in relation to the hearing of the dispute under the said Act. Rule 79 empowers the Court to investigate into the claims and objections against the attachment of any property under Section 95 of the said Act and to dispose of such claim or petition on merits after hearing the parties. Rule 80 deals with the procedure to be followed for custody of the property attached under Section 95 of the said Act. Rule 81 deals with the procedure for attachment and sale of property for realisation of any security given by person in course of execution proceedings. Rule 82 speaks of issuance of proclamation prohibiting private transfers of property in the course of action under Section 98 of the said Act by the Registrar or the liquidator. Rule 83 deals with the procedure for execution of the award passed by the Cooperative Court. Rule 84 pertains to the execution of the awards and orders in special cases. Rule 85 deals with the transfer of property which cannot be sold. Rule 86 pertains to the payment of fees for decisions of the disputes.

22. Bare reading of the above referred provisions of law contained in the said Act and the said Rules, therefore, discloses that the same provides for elaborate procedure to be followed by the Cooperative Court right from the stage of referring of the dispute for adjudication till it is terminated by final decision as well as relating to the execution of such decision. While Section 94 specifically provides that the disputes before the Cooperative Court are to be heard and disposed of in the manner prescribed under the said Act and as far as possible in a summary manner and as expeditiously as possible. Section 95 speaks about the incidental proceedings and interlocutory orders which may be passed during the pendency of such disputes before the Cooperative Court. In fact, Section 94 not only speaks about the procedure to be followed while hearing the matter but it also deals with the matters pertaining to issuance of summons, enforcement of attendance of witnesses, joinder of necessary parties, deletion of unnecessary parties, rejection of dispute in absence of cause of action being disclosed, moulding of the relief in appropriate cases, passing of ex-parte orders, setting aside of such orders for sufficient cause being shown, etc. Undoubtedly, Sub-section (1) thereof refers to the phrase "by the same means and as far as possible in the same manner, as is provided in the case of a Civil Court by the code of Civil procedure, 1908". Apparently, it does not speak about the applicability of the provisions of the Code of Civil Procedure to the proceedings before the Cooperative Court. But it provides that the Cooperative Court shall enjoy similar powers as those of Civil Court in case of enforcement of attendance of witnesses and the production of oral and documentary evidence as provided by C.P.C. In other words, it merely refers to the similarity as far as possible to be observed in the manner of enforcement of attendance of witnesses and production of the oral and documentary evidence before the Cooperative Courts with that before the Civil Courts as provided by C.P.C. It is one thing to say that the provisions of Civil Procedure Code would apply to the proceedings before the Cooperative Court and totally different thing to say that the manner of enforcement of attendance of witnesses and production of evidence as followed by Civil Court under Civil Procedure Code be followed as far as possible by the Cooperative Courts. The latter statement would clearly signify that the Legislature in its wisdom has specifically avoided to apply the provisions of Civil Procedure Code to the proceedings before the Cooperative Court and has allowed such Courts to follow the rules of procedure followed by the Civil Courts under Civil Procedure Code in specified situations and not in each and every case. Besides, it is to be noted that the reference to the manner relating to the enforcement of attendance of witnesses and the production of evidence similar to one in case of Civil Court has been made subsequent to the specific provision regarding the requirement to hearing the dispute in the manner "as prescribed under the said Act".

23. Taking into consideration all the provisions relating to the procedure to be followed by the Cooperative Court under the said Act and the said Rules, therefore, would lead to the conclusion that the same shall be necessarily as prescribed under the said Act and the said Rules, though in the specified circumstances it may be as far as possible in consonance with the procedure followed by the Civil Courts under the code of Civil Procedure and in that connection, the principles of Code of Civil Procedure are to be borne in mind. Obviously, a specific provision in that regard was required to be made since Legislature in the said section itself has stated that the procedure to be followed shall be as prescribed. Meaning thereby in the absence of specific provision regarding enforcement of attendance of witnesses and recording of evidence - oral or documentary being provided n the said Rules, the principles of Code of Civil Procedure in that regard will have to be applied. However, the provision regarding the application of the said principles is essentially in relation to the enforcement of attendance of witnesses and recording of evidence - oral or documentary. Undoubtedly, merely because the section restricts the applicability of such principles only in relation to the enforcement of attendance of witnesses and recording of evidence-oral or documentary, it cannot be also said that the principles of C.P.C. would not apply even in case where the said Act or the said Rules are totally silent. Nevertheless, it will be only in relation to the procedure to be followed and when absolutely necessary for the purpose of disposal of the dispute and in the interest of justice, some of the examples of applicability of principles of C.P.C. to the proceedings before the Cooperative Courts can be in elation to power to frame and alter the issues in terms of Order XIV, amendment of award when any clerical or arithmetical mistakes or error arising therein from any accidental slip or omission is brought to its notice in terms of Section 152 of C.P.C. or following the procedure prescribed for the adjudication of main disputes, in case of miscellaneous proceedings therein in terms of Section 141 of C.P.C. These are some of the instances in which general principles of C.P.C. would be attracted and can be followed by the Cooperative Courts. However, it will not include the jurisdiction to exercise various powers specifically given to the civil Court which otherwise are not normally available to any Tribunal or quasi judicial authorities. Inherent power which is available to the civil Court under Section 151 cannot be presumed to be available to the Cooperative Court in the absence of specific provision in that regard under the said Act. Similarly, the Cooperative Court is not entitled to exercise the powers of review under C.P.C. in the absence of specific provision in that regard in the statute under which it is constituted. Being so, merely because Section 114 and Order 47 makes the provision for review power to the Civil Courts under the C.P.C., it cannot be said that the Cooperative Court would be entitled to exercise the same power in the absence of similar provision in that regard in the said Act and the Rules. It is settled law that the Courts which are constituted under special Statutes can function within the scope of the powers given to such Courts under the Act under which they are constituted and they cannot travel beyond such powers.

24. Perusal of Section 95 of the said Act will disclose that it deals with specific instances under which the cooperative Court in exercise of its power can grant interlocutory orders or any reliefs pending hearing and disposal of dispute before such Court. The elaborate procedure prescribed under Rules 77E, 77F, 78, 80 and 83 regarding the issuance of summons, hearing of the parties, granting of leave to defend, recording of evidence and execution of the awards would be redundant if the provisions of C.P.C. are held to be applicable to the Cooperative Courts. It is also pertinent to note that the provisions of the said Act as well as the said Rules in relation to the specified disputes to be dealt with before the Cooperative Court specifically provide for expeditious hearing as well as in a summary manner, albeit, with the consent of the disputant. If the intention of the Legislature was to apply the provisions of C.P.C. to the Cooperative Court, there was no need to make specific provision under Section 95 empowering the Co-operative Courts to order attachment before the award or to enable them to pass interlocutory orders during the pendency of the dispute. Similar powers are always available under the C.P.C. in terms of Order XXXVIII and XXXIX in relation to the attachment and interim orders by the Civil Courts. But the Co-operative Courts constituted under the said Act do not enjoy the said powers under the said Order XXXVIII and XXXIX of C.P.C., instead they have similar powers under Section 95 of the said Act.

25. Order XXXIX Rule 11 of C.P.C. which was inserted by virtue of amendment to Order XXXIX for the State of Maharashtra and which has been brought into force with effect from 1.10.1983 reads thus:

"11. Procedure for committing breach of the undertaking to the Court:

(1) Where the Court orders any party to a suit or proceedings to do or not to do a thing during the pendency of the suit or proceeding, or where any party to a suit or proceeding gives any undertaking to the court to do or to refrain from doing a thing during the pendency of the suit or proceeding, and such party omits any default in respect of or contravenes such order or commits a breach of such undertaking, the Court may dismiss the suit or proceeding, if the default or contravention or breach is committed by the plaintiff or the applicant, or strike out the defences if the default or contravention or breach is committed by the defendant or opponent.

(2) The Court may, on sufficient cause being shown and on such terms and conditions as it amy deem fit to impose, restore the suit or proceeding or may hear the party in defence, as the case may be, if the party that has been responsible for the default or contravention or breach as aforesaid makes amends for the default or contravention of breach to the satisfaction of the Courts.

Provided that before passing any order under this Subrule, notice shall be given to the parties likely to be affected by the order to be passed."

26. While considering the above provision of law in the C.P.C. and the arguments advanced by either sides and as regards the applicability of non-applicability thereof to the disputes before the Cooperative Court, it will be necessary to bear in mind the provisions of Sections 95 and 98 of the said Act as well as Rule 77-F(3) and (4) and Rule 83 of the said Rules. Section 95(4) specifically deals with the powers of the Cooperative Court to pass interlocutory orders as may appear to be just and convenient to prevent the needs of justice being defeated during the pendency of the dispute. Section 98 speaks of the manner in which such orders can be executed. Accordingly, every such order is to be deemed to be a decree of Civil Court and can be executed in the same manner as the decree of the Court. In addition, if such order relates to payment of money it can be executed also as the order for recovery of arrears of land revenue. Further, Rule 83 clearly speaks of the choice left to the decree holder or the person in whose favour the order is passed in relation to the execution of such order that is to say whether it is to executed as if it is a decree or through the Collector as if the order for recovery of arrears of land revenue. Sub-rule (3) of Rule 83 further empowers the authorities to take action in the nature specified under Rule 82 that is by way of proclamation and prohibiting the private transfer of properties in case of failure to comply with the order under Section 95. The provisions of law contained in the said Act and the said Rules, therefore, disclose that the Legislature in its wisdom has taken sufficient care to provide elaborate procedure including coercive methods to be adopted in case of non-compliance of the orders passed by the Cooperative Court and in that regard sufficient power has been given to the Cooperative Court to pass the orders which may be just and convenient to prevent the ends of justice being defeated and to execute its orders effectively. Once the Legislature while making such provision, including the provision regarding coercive methods which can be adopted for due execution of orders passed by the Cooperative Courts, has excluded to make any provision in the nature it is contemplated under Order 39 Rule 11 of C.P.C. in relation to the procedure to be followed by the Cooperative Court, the conclusion to be drawn is that apparently the provisions of C.P.C. have not been made applicable to the Cooperative Court and further that there is no provision similar to Order 39 Rule 11 of C.P.C. except in cases where there is failure to comply with the conditions imposed while granting leave to defend. Indeed, similar provision is to be found under Order 37 of the C.P.C. in cases of summary suit. Sub-rule (5) of the Rule 3 of Order 37 provides that the defendant may at any time within 10 days of service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be sufficient to entitle him to defend, apply on such summons for leave to defend such suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to Court or Judge to be just. Clause (b) of Sub-rule (6) of Rule 3 thereof provides that at the hearing of such summons for judgment if the defendant is permitted to defined as to the whole or any part of the claim, the Court or Judge may direct to give such security and within such time as may be fixed by the Court or Judge and that on failure to give such security within the time specified by the court or the Judge or to carry out such other directions that may have been given by the Court or Judge, the plaintiff shall be entitled to the judgment forthwith. Of course, Sub-rule (7) of Rule 3 empowers the Court for sufficient cause shown by the defendant to excuse the delay by the defendant in entering the appearance or in applying for leave to defend the suit. The provisions of Rule 3 of Order 37 are more or less similar to the provisions contained in Rule 77-F(A) of the said rules. The Legislature in its wisdom, therefore, while incorporating the provisions regarding the penalty of losing the opportunity to defend the dispute in case of failure to comply with the conditions imposed while granting leave to defend has omitted to make any provision on par with Order 39 Rule 11 of C.P.C. to strike off the defence of the party in case of non-compliance of direction under Section 95 of the said Act but at the same time has clearly provided as to how such orders can be executed and in case of failure thereof can be prosecuted as well as punished for contempt of Court. The scheme of the said Act is such that it makes elaborate provisions to meet all the possible eventualities which may arise in the courts of the proceedings before the Cooperative Court and it is not necessary for those Courts to take shelter of the provisions of the Code of Civil Procedure to pass appropriate orders in any of those eventualities.

27. Drawing attention to Section 4(1) of the Code of Civil Procedure, it was sought to be argued that the said provision of law nowhere restricts or excludes the applicability of the provisions of Civil Procedure Code to the Courts established or constituted under special or local Acts unless the specific provision in that regard or to that effect is to be found in such special or local Act. Sub-section (1) of Section 4 of C.P.Code reads thus:-

Section 4. Savings:-

(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) ....."

The provision of law contained in above sub-section deals with the aspect of "saving of the provision of law which may be contrary to or which is not in consonance with the provisions of Civil Procedure Code to be found in the special or local act or any special jurisdiction or powers conferred on any special form of procedure prescribed under such special or local Act." It does not speak of extension of provisions of C.P.C. to such Courts or Tribunals constituted under such special or local Acts. Section neither speaks of applicability nor of power of applicability of C.P.C. to the Courts constituted under special or local laws to dal with the cases and disputes arising under such Act.

28. Besides the said Act and the said Rules prescribes specific procedure for hearing and disposal of disputes by the Cooperative Courts and such procedure prescribed under the said Act and said Rules does not contain provision for striking of defence in case of violation or non-compliance of such conditions attached to any interim order but at the said time it does provide for prosecution or initiation of contempt proceedings in such eventualities. The statute being specifically providing for one remedy in a given situation, it cannot be said that by referring to Section 4(1) of C.P.C. the Cooperative Courts would be entitled to invoke the powers of the Civil Court under Order 39 Rule 11 of C.P.C. In fact, the contention on behalf of the respondent in that regard runs counter to the provisions of law contained in Section 4(1) itself. In fact, reference to Section 4 of C.P.C. is thoroughly unwarranted for the decision in the matter. It appears that the respondents are totally misconstruing the provisions of law contained in the said Section. The scope of said Section came up for discussion before the Apex Court in Kulwant Kaur and Ors. v. Gurdial Singh Mann (Dead) by L.Rs. and Ors. , while dealing with the issue as to whether the provisions of Section 100 of C.P.C. consequent to the Amendment Act, 1976 would override the Section 41 of Punjab Courts Act, 1980. The contention of the parties therein was that in terms of provisions of Section 41 of the Punjab Courts Act it was neither necessary nor required to frame any substantial question of law of entertaining the second appeal by the Courts and, therefore, there was no question of compliance of amended provision of Section 100 in view of the provisions contained in Section 41 of the Punjab Courts Act. Undoubtedly, Section 41 of the Punjab Courts Act dealt with the powers of the High Court to entertain second appeals against every decree passed in appeal by any Court subordinate to High Court and it enumerated the grounds on which such second appeals can be entertained. The Punjab High Court, therefore, had ruled that Section 41 of the Punjab Courts Act provides a special jurisdiction to the High Court as regards the second appeal and cannot be said to be affected by the Civil Procedure Code and hence, came to a conclusion that Section 4(1) of the code has otherwise saved Section 41 of the Punjab Courts Act from being in any way overridden or affected by the provisions of the Code even after introduction of the Amendment Act, 1976. While rejecting the said ruling of Punjab High Court, the Apex Court ruled that:-

"By this, special or local laws are protected and thus not to be effective (sic) in the absence of any specific provision to the contrary. In other words, special or local laws would be functional till any specific provision to the contrary stands engrafted. Since Section 100 CPC, unamended, was in pari materia with Section 41 of the Punjab Act, there was no conflict and Section 41 continued in its filed unaffected. This is reinforced by the language of unamended Section 100 CPC."

Apparently, Section 4(1) of the C.P. Code does not speak of the procedure relating to the Courts and Tribunals constituted under the special statutes but it speaks about the continuation of applicability of provisions relating to procedure followed by the Civil Courts prior to the enforcement of the Code of Civil Procedure, 1908 and or any special jurisdiction or power conferred upon such Civil Courts as also regarding special form of procedure being prescribed by or under any other law which was in force at the time the Code of Civil Procedure came into force to be continued subject to that the same is not in conflict with the provisions of the Code of Civil Procedure. In other words, Section 4 relates to the procedure before the Civil Court and not before the Court specifically constituted under any special statute for specific purposes bestowing upon them the jurisdiction in relation to the subject matter specified under the statute under which such Courts are constituted while excluding the jurisdiction of the Civil Courts to deal with the subject matter to be dealt with by such special Courts. Being so, Section 4 in no way discloses extension of the provisions of the Code of Civil Procedure to the Cooperative Court.

29. In this regard, it will be worthwhile to take note of the ruling of Allahabad High Court in Smt. Chaboo Devi v. Pt. Ram Sarup and Anr. wherein it was held that the provision of Order 44 Rule 1 of C.P. Code is a specific provision contrary to Section 4 of the Court Fees Act and it will supersede the said Section in view of the provisions of law contained in Section 4 of C.P. Code.

30. Similarly, it is necessary to take note of decision of the learned Single Judge of this Court in Sunanda w/o Gundopant Ashtekar v. Gundopant Bandopant Ashtekar reported in AIR 1961 BOMBAY 225, wherein it was held that by virtue of Section 21, the provisions of C.P.C. apply to the proceedings under Hindu Marriage Act and, therefore, Order 9 Rule 13 would also apply. In other words, in the absence of Section 21, there would have been no occasion for application of the provisions of C.P.C. to the proceedings under Hindu Marriage Act and more particularly in view of the fact that Section 21 of the said Act empowers the High Court to frame Rules relating to the procedure to be followed in respect of the matters arising under the said Act.

31. Their Lordship of the Privy Council in Nazir Ahmed v. King Emperor (AIR 1936 SC 253) had held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and all other methods of performances are necessarily to be held as forbidden. Further the Apex Court in N.P. Ponnuswami v. Returning Officer, Namakkal had held that it is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. Following the said rulings of the Privy Council and the Apex Court, Justice A.P. Sen, speaking for the Division Bench of M.P. High Court in Madhya Pradesh State Road Transport Corporation, Jabalpur v. Jahiram and Anr. observed that where a statutory power is conferred for the first time upon the Court and a mode of exercising it is pointed out, it means no other mode is to be adopted. While delivering the judgment in relation to procedure to be followed by the Motor Accident Claims Tribunal, consequent to the incorporation of provisions of law in the form of Section 110-A to 110-F in the Motor Vehicles Act, 1939 it was held that:-

"We have no manner of doubt that the intention of the Legislature as gathered from the words used in Section 110-A to 110-F of the Motor Vehicles Act, is plain and unambiguous and they have one meaning only, namely, that no such claims can now be tried in the ordinary way. As a logical consequences, it follows that such claims have to be made in the manner prescribed. The remedy provided by the statute must be followed, and the form given by the statute must be adopted and adhered to. The Legislative Object of inserting these sections in the Motor Vehicles Act by Act 100 of 1956, was to provide for a speedy and summary enforcement of third-party risks against an insurer."

32. The fall out of the above discussion is that the provisions of C.P.C. cannot be held to be applicable in the manner sought to be argued by the learned Advocate for the Respondents to the proceedings before the Cooperative Court while dealing with the disputes under the said Act though in relation to such procedure wherever the provisions of law contained in the said Act and the said Rules are totally silent, the principles of the C.P.C. can be made applicable but at the same time, it would not mean that the Cooperative Court will enjoy the powers specifically given to the Civil Court like those of inherent powers, review powers or the powers imposing penalty like striking off the defence, under Order XXXIX Rule 11 of C.P.C., etc.

33. The learned Single Judge of this court (D.G. Karnik, J.) in the matter of Khandesh Urban Credit Society (supra) after considering the provisions of the said Act and the said Rules, observed that the order of the Cooperative Court dated 19.3.2001 was erroneous as it had no power of review under the said Act and the said Rules. Undoubtedly, the issue regarding the applicability of the C.P.C. to the proceedings before the Cooperative Court did not arise in the said case, however, the learned Single Judge did take into account the well settled law that the courts constituted under the special Statutes cannot travel beyond the jurisdiction bestowed upon them under the Statutes under which they are created.

34. The learned Advocate for the Respondents has referred to various decisions in an attempt to make his point good, however, none of the said decisions are of any help to the Respondents. The decision in Bapusaheb B. Patil's case (supra), was on the issue whether the officers on special duty appointed under notification dated 11.3.1969 issued by the State Government were Courts within the meaning of the Contempt of Courts Act while discharging their duties under the said Act or not. The issue was not regarding the applicability of the provisions of the C.P.C. to the Cooperative Court. The decision of the Calcutta High Court in Sahadat Khan's case (supra) is to the effect that since West Bengal Premises Rent Control Act was silent about certain provisions of law in relation to the procedure, there was no bar for applicability of the C.P.C. in those circumstances. The decision nowhere lays down the law that in cases where special statute deals with the procedure to be followed by the Special Courts constituted under the Statute itself nor it lays down the law that the provisions of C.P.C. can be applied to the Courts constituted under such Statutes. The decision of the Rajasthan High Court in Ramsingh's case (supra) is on the point as to whether the writ proceedings are civil proceedings and that, therefore, even though the provisions of C.P.C. are not directly applicable to those proceedings, whether those provisions of law in C.P.C. which are not in conflict with the Rajasthan High Court Rules can be made applicable and more particularly the provisions under Order 9 Rule 9. The decision is in relation to the powers of the High Court while dealing with the proceedings under Article 226 of the Constitution of India. A decision in relation to the power of the High court while dealing with the matter under Article 226 by no stretch of imagination can be of help to decide the scope of the power of the special Tribunals which are constituted under special Statutes. The decisions in Maharashtra Cooperative Court Bar Association's case (supra) is again on the point as to whether the Judges of Cooperative Courts are Judicial Officers and not employees of the Co-operative department. In Maharashtra State Financial Corporation's case (supra), the Apex Court had ruled that when a special statute confers jurisdiction on District Judge, the District Judge will not abe a persona designata but a Court of ordinary civil jurisdiction to which the rules of procedure under C.P.C. would apply. The decision in Reliance Industries case is on the point of applicability of the provisions of Clause 36 of the Letters Patent when the two Judges of Division Bench equally differ on a question of fat or law. The decision in Ratnakar Patade's case is on the point that the provision of law in Order 39 Rule 11 of C.P.C. is mandatory in nature and not discretionary. None of the decisions relied upon by the respondents are in relation to the point in issue in the matter and, therefore, are of no help in the case in hand.

35. Reverting to the facts of the case, the cooperative Appellate Court has set aside the order of the Cooperative Court rejecting the application filed by the Respondents for action under Order 39 Rule 11 of C.P.C. holding that the Cooperative Court has jurisdictions of law. As seen above, the Cooperative Courts are not armed with such powers and, therefore, the impugned order cannot be sustained and on that account itself without going into the merits of case, the impugned order is liable to be set aside and the order passed by the Cooperative Courts dismissing the application for action under Order 39 Rule 11 of C.P.C. to be confirmed.

36. Accordingly, the petition succeeds. The impugned order is hereby quashed and set aside. The order of the Cooperative Court dismissing the application filed by the Respondents for action under Order 39 Rule 11 of C.P. Code stands confirmed. In view of the dismissal of the application under Order 39 Rule 11 of C.P.C., various observations made by Courts below regarding the merits of the case also do not survive and, accordingly, stand quashed. Rule 11 is made absolute accordingly with no order as to costs.

37. At this stage, the learned Advocate for the Respondents requests for continuation of stay which was granted earlier. Once this Court has arrived at a conclusion about the absence of jurisdiction of the Cooperative Court to exercise powers under Order 39 Rule 11 of C.P.C., the question of continuation of interim relief does not arise. Hence, request is rejected.