Ashis Kumar Chakraborty, J. - (1.) THE petitioner has challenged the legality of the award dated January 30, 2006 passed by the respondent No. 2 the Assistant Registrar or of Co -operative Societies, Midnapore -II, Contai (hereinafter stated as "the impugned award") directing the petitioner to pay a sum of Rs. 17,63,299/ - with interest at the rate of 16.5% per annum from January 31, 2006 to the respondent No. 3 bank. The respondent No. 2 further ordered that in the event of the petitioner not paying the said sum of Rs. 16,75,674/ - the respondent No. 3 bank would have the liberty to adjust the cash securities furnished by the borrower and his sureties against the outstanding dues first and the remaining dues would be recoverable from the mortgaged properties furnished by the borrower and the sureties.
(2.) THE petitioner obtained financial facilities from the respondent No. 3 Cooperative Bank, that is, a term loan of Rs. 4 lakh and a cash credit loan of Rs. 10 lakhs. For the purpose of securing the repayment of the said term loan and cash credit loan to the respondent No. 3 bank, the petitioner deposited certain cash securities and his parents being the respondent Nos. 4 and 5, as sureties, mortgaged their immovable properties with the respondent No. 3 bank. The petitioner committed default in repayment of his dues in respect the term loan and the cash credit loan to the respondent No. 3 bank and the respondent No. 3 bank lodged a complaint under Section 128 of the West Bengal Co -operative Societies Act, 1983 (hereinafter referred to as the "said Act") at the office of the respondent No. 2. By a notice dated January 9, 2006, the respondent No. 2 informed to the petitioner of the requisition filed by the respondent No. 3 for obtaining a decree against the petitioner under Section 128 of the said Act, for Rs. 17,55,674/ -, and directed the petitioner to appear before him on January 30, 2006 at 12 noon. The petitioner alleged that along with the said notice dated January 9, 2006, the respondent No. 2 did not disclose the details of the amount claimed by the respondent No. 3 after due giving adjustment of the money already repaid by him. In paragraph 8 of the writ petition, the petitioner categorically stated that on January 30, 2006 he appeared before the respondent No. 2 and prayed for time and requested for furnishing the details statement of account on which the amount of claim was arrived at by the bank but the respondent No. 3 instead of granting time proceeded to pass the impugned award arbitrarily and with undue haste. In paragraph 8 of the affidavit -in -opposition affirmed by its Chairman, the respondent No. 3 bank, has admitted that the petitioner was present before the respondent No. 2 on January 30, 2006 and there is no specific denial of the averment of the petitioner requesting the respondent No. 2, during the said hearing held on January 30, 2006 to grant him some time and furnish him with the details statement of account on which the respondent No. 3 claimed the said amount. However, in the impugned award disclosed as Annexure P5 to the writ petition, it is expressly mentioned that the same is an ex parte award under Section 128 of the said Act. When this writ petition was moved by an order dated March 02, 2006 a learned Single Judge stayed the impugned award until further order.
(3.) MR . Srimanta Dutta, the learned Advocate appearing for the petitioner at the very outset of the hearing of the writ petition submitted that the said interim order dated March 02, 2006 was passed in view of the decision of a Full Bench of the Bombay High Court in the case of Narendra Kantilal Shah vs. Joint Registrar, Co -operative Societies (Appeal) Bombay & Ors. reported in : AIR 2004 Bom 166 where it was held that in view of the provisions contained in the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 a 'Cooperative Bank' becomes a bank within the meaning of Section 2(d) of the said Act and as such the Debts Recovery Tribunal would have the exclusive jurisdiction to deal with all claims of a co -operative bank for recovery of its dues and that Registrars or any other officer under the State Co -operative Societies Act would not have the jurisdiction to entertain any recovery proceeding at the instance of the co -operative bank. He, however, pointed out that but said Full Bench decision now stands overruled in view of the subsequent decision of the Supreme Court. According to Mr. Dutta the impugned award does not disclose any reason nor conforms to the requirements of Rule 177 of the West Bengal Co -operative Societies Rules, 1987 (hereinafter referred to as "the said Rules") and as such the impugned award passed by the respondent is void. Mr. Dutta further submitted that the petitioner is not a member of the respondent No. 3 bank and relying on a decision of a Single Judge of this Court in the case of Pravat Kumar Chatterjee vs. State of West Bengal reported in : AIR 1986 Cal 270, submitted that Section 39 of the said Act prohibits a co -operative bank from advancing loan to a non -member.;