Sargodha Vihar Cooperative Group ... vs Bharat Bhushan Chawla And Ors.
2000 Latest Caselaw 669 Del

JUDGMENT

Vijender Jain, J.

1. Aggrieved by the order of the Cooperative Tribunal dismissing the appeal of the petitioner, the petitioner has filed the present writ petition.

2. It has been contended by Mr. Munjal that in terms of Role 89 of the Delhi Co-operative Societies Rules, 1973 (hereinafter referred to as the "Rule") the award is without jurisdiction. Rule 89 of the Rules is to the following effect:

"89. Award or Decision

1. The arbitrator shall make a memorandum of the statements of the parties who attended and if such witnesses are examined and upon the evidence so recorded and after consideration of any documentary evidence produced by either party shall make an award in accordance with justice, equity and good conscience, he shall record his award signed and dated within a period of three months and shall communicate it to the party concerned. In case the arbitrator is unable to decide the case and make the award within three months he shall seek extension of the period in writing from the Registrar by making an application to him.

3. It has been contended by Mr. Munjal on the basis of the aforesaid rule that the arbitrator is to make the award within a period of three months and he was obliged to seek extension of time if the arbitrator could not make the award within a period of three months and that extension of time was to be sought from the Registrar in writing by making an application to him. In support of the submission learned counsel for the petitioner has relied upon , A.K. Roy and Anr. v. State of Punjab and Ors.

4. The Second contention urged by Mr. Munjal before me is with regard to the application of directive dated 28th May 1996 issued by the Registrar Co-operative Societies to the societies. He has contended that the directive issued by the Registrar dated 28th May 1996 was prospective in nature and was not retrospective. What has been argued is that the resignation of the respondent No. 1 was accepted by the Managing Committee on 5th May 1996 Whereas the directive came from the Registrar on 28th May 1996. Lastly it has been contended before me that the Registrar of Co operative Society in terms of Rule 77 could not have issued such a directive as directives could only be issued with regard to the conduct of business of the co-operative society in terms of Rule 77 of the Rules. The society was a group housing society and was not doing any business. In support of his submission he has relied upon ILR (1977) I Delhi, R.P. Dube v. Lt. Governor and Ors. and , The Co-operative Central Bank Ltd. and Ors v. The Additional Industrial Tribunal, Andhra Pradesh and Ors.

5. On the other hand Mr. V.K. shali appearing for the Registrar Co-operative Societies has contended that in the rule making power pursuant to which the Registrar Co-operative Society has issued directives dated 28th May 1996 the Registrar was empowered to do so. He has further contended that even in the said directive it has been clearly postulated that these rates of interest which was to be charged by the society from the defaulting members or interest which was to be-paid to those members who have resigned from membership should be the maximum rate of interest. He has contended that in the directive under reference, however, it was made clear that this was subject to the approval of the general body of the society. He has further contended that as the total amount which the respondent was entitled to had not been paid by the time directive came into operation, therefore, the directive of the Registrar would be applicable to the case of the respondent No. 1. Lastly rebutting the arguments of the learned counsel for the petitioner Mr. shali has contended that as the parties were participating in the adjudication proceedings before the arbitrator, therefore, the argument of the petitioner that Rule 89 would circumvent the arbitrator to proceed in the absence of a written extension granted by the Registrar is not available to the petitioner.

6. Mr. Chawla, respondent No. 1 has primarily based his arguments on the contention raised by Mr. Shali. He has also contended that although the petitioner has shown the minute book to the Court whereas his resignation was accepted on 5th May 19% although he was communicated only on 28th June 19% that his resignation has been accepted by the petitioner. He has further contended that he has been depositing the amount as per the call money asked by the petitioner and, therefore, there was no occasion for the petitioner to withheld this amount and as the petitioner has wrongfully withheld the amount the petitioner is liable to pay interest at the said amount.

7. I have given my careful thought to the arguments of learned counsel for the parties as well as respondent No. 1. Rule 89 makes it mandatory that award by the arbitrator has to be given in a period of there months. However, an exception is carved out to make the award after the expiry of three months but in that case the arbitrator has to seek extension in writing from the Registrar. Nothing has been brought on record that the arbitrator has sought that extension by writing an application by the Registrar. I do not see any force in the arguments of learned counsel for the Registrar, Co-operative Society that the analogy of the old Arbitration Act should be incorporated in interpreting Rule 89 of the Rules. In the Rule itself when the word "shall" has been used I fail to understand as to how this can be interpreted as "may". Therefore, when the arbitrator after expiry of period of three months had not made the award it was incumbent upon him to have sought an extension by writing to the Registrar for getting the tune extended for making the award. I do not see any force in the arguments of the learned counsel for the Co-operative Society that as the arbitrator was a Joint Registrar, therefore, any extension granted by him would suffice the requirement of Rule 89 of the Rule. Section 61 of the Delhi Co-operative Societies Act 1972 (hereinafter referred to as the "Act") postulated there forums which Registrar may chose to have a reference of disputes. It is Sub-section (c) of Section 61(1) of the Act when Registrar instead of opting for Sections 61(l)(a) and 61(l)(b) takes recourse to Section 61(l)(c) and appoints an arbitrator. In that eventuality any arbitrator who is nominated by him either in his office or outside the office acts as an arbitrator. Making of the award by the said arbitrator is regulated by Rule 89 of the Rules. The law regarding interpretation of statute is well settled. When there is no ambiguity in the words in the section or rule the Court by its own interpretation cannot insert words which are non-existent in the rule. Under Rule 89 the words "shall seek extension" have been used and for that reason it cannot be read as "may seek extension".

8. With regard to the arguments advanced by the learned counsel for the parties as to the applicability of the directive by the Registrar, I am of the opinion that no adjudication is required in this case as admittedly the stand of both the counsel was that according to the directive issued by the Registrar under Rule 77 of the Rules the directive would have become operative only after the approval of the same in the general body meeting of the co-operative society. If that is so, the case of the petitioner is that they have not adopted or approved the circular of the Registrar. That being the case it is not necessary to go into the aspect whether the Registrar Co-operative Society is empowered to issue such directive under Rule 77" of the Rule or not. Therefore, once I have held that the arbitrator was required to have extension of time in writing, same having not been done, the impugned order is without jurisdiction. I set aside the same as well as the impugned order of the Tribunal.

9. However, the fact remains that the respondent No. 1 was not paid a sum of Rs. 22,727/- which ought to have been paid to the respondent No. 1 by the petitioner society. Mindful of the fact that petitioner society is not engaged in a business like a co-operative society running bank or credit or thrift society. Respondent No. 1 should be entitled to interest @ 7 percent per annum. Therefore, I direct the petitioner to make the payment of the aforesaid amount along with interest at the rate of 7% from the date of the application of respondent No. 1 for resignation which is dated 14th of April 1996 till the amount is paid to respondent No. 1. Let the amount be paid to the respondent No. 1 within a period of four weeks.

10. Petition is disposed of accordingly.