(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of this intra-court appeal under Clause-15 of the Letters Patent, the appellant– original petitioner has challenged the Order dated 21.9.2010 passed by the learned Single Judge in Special Civil Application No.1137 of 2010 dismissing the petition by confirming the order passed by the Gujarat State Cooperative Tribunal in Misc. Application No.513 of 2006 whereby the Tribunal dismissed the said application of the appellant–petitioner for condonation of delay in preferring the appeal challenging the judgment and order dated 18.03.1999 passed by the Board of Nominees in Arbitration Suit No.449 of 1992 wherein he was one of the defendants.
2 The brief facts of the care are as under:
That the respondent No.1-Bombay Mercantile Cooperative Bank Limited filed an Arbitration Suit No.449 of 1992 before the Registrar, Board of Nominees, Ahmedabad, under Section-96 of the Gujarat Cooperative Societies Act, 1961, praying for a decree for recovery of an amount of Rs. 9,97,493.85ps with running interest at the rate of 20.75% from 1.3.1992 till realization in which the present appellant–petitioner was defendant No.5. It was the case of the Bank that the original defendants No.2 to 4 were the partners of defendant No.1 who had obtained the loan from the Bank for their business. The present appellant along with defendant No.6 stood as guarantors in the said transaction.
Pursuant to the summons issued by the Board of Nominees, all the defendants appeared through their Advocates. Appellant– petitioner also engaged his Advocate to defend the suit. Though the appellant–petitioner appeared through his Lawyer, did not file his written statement. The Board of Nominees proceeded with the suit and, ultimately, decreed the same by judgment and award dated 18.3.1999 by which all the defendants were held liable to pay an amount of Rs. 9,97,493.85ps with running interest at the rate of 16.5% from 1.3.1992 till realization and also imposed cost of Rs. 5,000/- on all the defendants.
It appears from the judgment and decree that the appellant-petitioner (original defendant No.5) neither filed his written statement nor cross-examined the witnesses who were examined by the Board of Nominees. The suit was defended by the original defendants No. 1 to 4 only.
3 The said judgment and order dated 18.3.1999 passed in Arbitration Suit No.449 of 1992 was challenged by the present appellant by way of filing an appeal in the year 2006 before the Tribunal. Since there was a delay in preferring the appeal,the appellant–petitioner also preferred a Misc. Application No. 513 of 2006 praying for condonation of delay in preferring the appeal. The Tribunal dismissed the said application by a reasoned order dated 6.5.2009. The said decision of the Tribunal was challenged by the appellant–petitioner before the learned Single Judge by way of captioned Special Civil Application which has been dismissed by the learned Single Judge by order dated 21.7.2010, which is impugned in the present appeal.
4 The main contention raised by Mr. N.M. Kapadia, learned Advocate for the appellant is that the Board of Nominees has not followed the Gujarat Cooperative Societies Rules, 1961 and more particularly Rule 41(4), (hereinafter referred to as “the Rules” for short) and, therefore, the learned Tribunal ought to have condoned the delay in preferring the Appeal since the appellant had no knowledge of judgment and award and he came to know about the same only when he was served with the notice issued under Section 200 of the Bombay Land Revenue Code and ought to have quashed and set aside the set aside the judgment and decree dated 18.3.1999 passed by the learned Board of Nominees in Arbitration Case No. 449 of 1992 and ought to have decided the appeal on merits.
5 The learned Advocate Mr. Kapadia for the appellant has contended that when the judgment and decree was passed/ pronounced by the Board of Nominees in the year 1999, the appellant was not present before the Board of Nominees and, therefore, under Rule-41(4)(b) of the Rules, the Board of Nominees ought to have sent the said decision by Registered Post to the appellant, so that the appellant could have the knowledge of the same and could have filed the appeal within the prescribed period of limitation. Rule-41 of the Rules is reproduced here-in-below:
" 41. Procedure of hearing and decision:-
(1) The adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and upon the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice, equity and good conscience and it shall be reduced to writing. Such a decision shall be given in open Court either at once or on some future date of which due notice shall be given to the parties.
(2) If any of the parties duly summoned or informed to attend, fails to appear, the dispute may be decided in accordance with the relevant provisions of Order IX of the Code of Civil Procedure, 1908.
(3) Where the adjudicating authority is a board of nominees consisting of the board of nominees of two nominees and if their opinions differ regarding the decision, the adjudicating authority shall return the case to the Registrar with its notes of dissent and thereupon the dispute may be decided by the Registrar himself or the case may be forwarded to a fresh board of three nominee for decision.
(4) The decision shall be communicated to the parties by -
(a) pronouncement of the award; or
(b) registered post to any party which may be absent on [the date if due notice of the decision is not given to such party.]
(c) Ordinary post with UPC to any party which may be absent on the date if due notice of the date of decision is given to such party.
(5) After the decision of the case, of the adjudicating authority is a nominee or the board of nominees it shall return all the case papers to the Registrar.
6 In support of his contention, the learned Counsel for the appellant has relied upon a decision of this Court in the case of Kalyanbaugh Co-op. Housing Society Limited & Anr., vs. Rajendraprasad Shyamlal K. & Anr., reported at 2002 (2) GCD 1716 (Guj) and in the case of Amrutlal Mangalji Joshi vs. Arab Timbdi Juth Sevadayai Sahakari Mandali Ltd & Ors., reported at 1978 Vol. 19 GLR 20. Relying upon the aforesaid decisions, he has submitted that it has been held by this Court that if on the date of pronouncement of the award, the party is absent, then, the decision was required to be communicated to the said party and in absence of such steps taken by the adjudicating authority, the decision taken by the Tribunal in not considering the application for condonation of appeal, would be contrary to the said provisions and against the ratio laid down by this Court and therefore the order dated 6.5.2009 passed by the Tribunal dismissing the application for condonation of delay is required to be quashed and set aside. He further submitted that the Tribunal ought to have considered the period of delay from the date of knowledge of the judgment and award and ought to have considered the delay.
7 We have gone through the aforesaid two decisions. As far as the case of Amrutlal Mangalji Joshi (supra) is concerned, the learned Single Judge relied upon sub-rule (4)(b) of Rule-41 of the Rules, as it was there, but the same was amended on 7.5.1988. For ready reference, unamended Rule-41 is reproduced here-in- below for comparison:
“ 41. Procedure of hearing and decision:-
(1) The adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and upon the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice, equity and good conscience and it shall be reduced to writing. Such a decision shall be given in open Court either at once or on some future date of which due notice shall be given to the parties.
(2) If any party duly summoned to attend fails to appear, the dispute may be decided ex-parte.
(3) Where the adjudicating authority is a board of nominees consisting of the board of nominees of two nominees and if their opinions differ regarding the decision, the adjudicating authority shall return the case to the Registrar with its notes of dissent and thereupon the dispute may be decided by the Registrar himself or the case may be forwarded to a fresh board of three nominee for decision.
(4) The decision shall be communicated to the parties by -
(a) pronouncement of the award; or
(b) registered post to any party which may be absent on such date .
(5) After the decision of the case, of the adjudicating authority is a nominee or the board of nominees it shall return all the case papers to the Registrar.”
8. It is clear from the unamended provision of Rule 41(4) (b) of the Rules that earlier the decision was required to be communicated by Registered Post to any party which may be absent on such date when the decision was pronounced. But, in the amended provisions of Rule 41(4)(b) of the Rules it is made clear that the decision shall be communicated by Registered Post to any party which may be absent on the date if due notice of the date of decision is not given to such party.
9 In the case of Kalyanbaugh Co-op. Housing Society Limited (supra), the learned Single Judge has, after reproducing the amended provisions of Rule 41(4)(b) of the Rules and totally relying on the decision of this Court in the case of Amrutlal Mangalji Joshi (supra), quashed and set aside the decision of the Tribunal only on the ground that the decision of the Board of Nominees was not communicated by Registered Post to the party which was absent on the date of the pronouncement of the judgment and award passed by the Board of Nominees.
10 It is pertinent to note that the proceedings in the nature of civil suit, which is nomenclatured as “arbitration suit”, is governed by Chapter-IX of The Code of Civil Procedure, 1908, as per provisions of Rule 41(2) of the Rules. As far as appearance of parties and consequence of non-appearance of a party is concerned, under Order-IX Rule-1 of the Code of Civil Procedure, it is made clear that on the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. The said Rule also provides consequences of non-appearance of either the plaintiff/s or by the defendant/s.
11 In the case of Amrutlal Mangalji Joshi (supra), the learned Single Judge has relied upon a decision of the Apex Court in the matter of Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer and Anr., reported at AIR 1971 SC 1500 and after comparing the provisions of Section-12 and Section 18 of the Land Acquisition Act, 1894, came to the conclusion that same principle of law would be applicable in the case of Rule-41 of the Rules. It also appears that the learned Single Judge has not dealt with Rule 41(2) of the Rules which was amended on 2.6.1976 which lays down the procedure to be adopted under Order IX of Code of Civil Procedure.
12 In the present case, as stated here-in-above, the present appellant appeared through his Lawyer, who was bound to attend the proceedings which were pending before the Board of Nominees. It was also the case of the appellant in the delay condonation application before the Tribunal that, though, he had engaged the Lawyer, the Lawyer did not remain present and plead his case in defence before the Board of Nominees. .
13 Since the Lawyer was representing the case of the appellant, it is presumed that, he was aware about the day-to-day proceedings and the date of pronouncement of the judgment and award and, therefore, the party, who was not personally present, cannot be said to have no knowledge about the date of pronouncement of the decision. The party, who has engaged a Lawyer, may not attend the proceedings on every occasion but it is the duty of the Lawyer to attend the case on his client's behalf. It is presumed that the Lawyer had knowledge of date of notice of pronouncement of judgment and award and therefor in our view the Registrar of Board of Nominees is not bound to communicate his decision by Registered Post to the person who was not physically present on the date of pronouncement. It was the duty of the Lawyer to inform the decision of the Board of Nominees which had gone against the appellant.
14 While comparing the provisions of Sections 12 and 18 of the Land Acquisition Act, 1894 and Rule-41 of the Gujarat Cooperative Societies Act, 1961, we are of the opinion that, the decision taken by the Collector under the provisions of the Land Acquisition Act, 1894 is not comparable with the proceedings undertaken by the Board of Nominees which has to follow the procedure prescribed under Order-9 of the Civil Procedure Code. Under Sections 12 and 18 of the Land Acquisition Act, the Collector declares an Award under Section-11 of the Land Acquisition Act after considering the objections raised by the affected persons whose lands are under acquisition which is totally not in a judicial manner. The Collector after following the provisions of the Land Acquisition Act, arrived at a particular price and declares the award and, therefore, the same is required to be served to the affected person whose land has been acquired by the authority if he does not remain present on the date of pronouncement of the award. In the case on hand, the Board of Nominees, after following the procedure prescribed under Order-IX of the Civil Procedure Code and recording the evidence of the witnesses, pronounced the judgment and award, it is not mandatory to serve the decision by Registered Post to any party, who had engaged a Lawyer, was absent on the date of pronouncement, since it is presumed that the Lawyer was aware about the day-to-day proceedings before the Registrar or his Nominee. It is pertinent to note that under Order-
IX R.13 of the Code of Civil Procedure, the defendant against whom an ex parte decree is passed, can apply for setting aside the same on the grounds mentioned in it. In the present case also the appellant could have approached the Board of Nominees under the said provision.
15 In the case of Kalyanbaugh Co-op Housing Society Limited (supra), it appears that, both the defendants chose not to remain present before the learned Board of Nominees as they were under the impression that it was a dispute between the society and the bank and in their absence, the learned Board of Nominees proceeded ex parte and delivered the judgment against the petitioners. In the present case, the appellant was duly represented by his Advocate and, therefore, the Board of Nominees did not commit any error by not sending the decision by Registered Post to the defendant since he was represented by an Advocate who was aware about the day-to-day proceedings and about the decision which was pronounced by the Board of Nominees.
16 It is pertinent to note that in the case of Amrutlal Mangalji Joshi (supra), the learned Single Judge has, by placing reliance upon Section 41(4)(b) of the Rules, which has been subsequently amended, held that the decision was required to be sent to the party which was absent on the date of the pronouncement of the judgment and decree by Registered Post and remitted the matter to the Tribunal to decide the delay condonation application after giving opportunity to the parties. After amendment in the said Rule in 1988, it is made clear that the decision is required to be communicated by Registered Post to the party which may be absent on the date if due notice of the date of the decision is not given to such party. That means, if the party had knowledge of the date of decision through any source including his Lawyer, it is not mandatory for the Registrar or his nominee to send his decision by Registered Post.
17 Apart from this aspect, it appears that the appellant was aware about the decision way back in 2004 when the Notice of attachment under Section-200 of the Bombay Land Revenue Code was served to the appellant. The appellant preferred an Appeal after two years i.e. in the year 2006 and, therefore, in absence of sufficient ground for delay, the Tribunal had rightly dismissed the application for condonation of delay.
18 In view of the aforesaid factual as well as legal aspect of the matter, we are in agreement with the observations made by the learned Single Judge in the impugned judgment and order. No interference is called for in the impugned judgment and order of the learned Single Judge. The appeal is devoid of any merit and deserves to be dismissed. Hence, the appeal is dismissed accordingly. There shall be no order as to costs.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair