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PETITIONER: BIHAR STATE CO-OPERATIVE MARKETING UNION LTD.

       Vs.

RESPONDENT: UMA SHANKAR SHARAN AND ANR.

DATE OF JUDGMENT18/08/1992

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) ANAND, A.S. (J)

CITATION:  1993 AIR 1222            1992 SCR  (3) 892  1992 SCC  (4) 196        JT 1992 (4)   590  1992 SCALE  (2)209

ACT:      Bihar  and  Orissa  cooperative  societies  Act,  1935- sections 40 and 48-Whether remedy under a specific provision excludes  remedy under a general provision-held,  where  two remedies  are available, both continue till the election  of one  of  them, and action commenced  accordingly-Section  40 does not therefore exclude section 48-Plurality of Remedies- Principle of election.

HEADNOTE:      During  the tenure of respondent 1 as Depot Manager  of the Bihar State Cooperative marketing Union Ltd., a shortage of coal was detected. The appellant-Cooperative Union made a claim  for  the   loss, and  a reference  was  made  to  the Assistant Registrar, cooperative societies under section  48 of  the  Bihar and Orissa Cooperative  Societies  Act  1935. section  48(1)(c) deals with disputes between  the  Society. and  a  past  or  present  officer  or agent of the Society. Section 40 provides for investigation by the Registrar where upon an audit or enquiry such officer has been found  guilty of misappropriation or similar acts. The Assistant Registrar in  an enquiry under Section 48 absolved respondent 1.  This was  reversed  by  the Joint Registrar  and  an  award  made accordingly.  The  Patna High Court in  a  writ  application under Article 226 by respondent 1 held that since the matter was  covered by Section 40, Section 48 could not  apply  and set  aside  the award. The High Court relied  on  the  maxim generalia specialibus non derogant. The claim under  section 40  was  rejected on the ground of limitation  under  second proviso to Section 40 which prescribe a period of six years.      Allowing the appeal, this Court,      HELD  :  1. Validity of plural remedies,  if  available under  the law, cannot be doubted. Even if the two  remedies are inconsistent,  they continue for the person concerned to choose  from,  until he elects one of  them,  commencing  an action  accordingly. A matter which may attract  Section  40 will  continue  to  be governed by Section 48  also  if  the necessary conditions                                                     893 are  fulfilled.  In the present case no steps under  Section 40  were  ever taken by the appellant.   The  provisions  of

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Section  48 are available to the appellant for the  recovery of the loss. [896C-D] Prem Jeet Kumar v. Surender Gandotra & Ors., [1991] Supp.  2 SCC  215 and Pentakota Srirakulu v.  Co-operative  Marketing Society Ltd., [1965] 1 SCR 186, followed.      2.  The claim of the appellant against respondent 1  is clearly  covered  by  Section  48(1)(c)  and  therefore  was validly  referred  to the Registrar under Section 48. [895G]      3.   The six year rule of limitation in  Proviso  under Section 40(1) is limited for the purpose of Section 40,  and cannot govern a reference under Section 48. Even  otherwise, on facts the claim is not barred by limitation.  [897B]      Purnea Ministerial  Government  Officers’  Co-operative Society   Ltd.  v.  Abdul  Quddus,  (1969)  11   BLJR   969, distinguished.      Matter  remitted to the High Court for decision on  the remaining issues. [897F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 3047  of 1992.      From  the  Judgement and Order dated 30.7.1984  of  the Patna High Court in Civil Writ Jurisdiction Case No. 373  of 1977.      M.L. Verma and S.K. Sinha for the Appellant.      A.K. Srivastava for the Respondents.      The Judgement of the Court was delivered by      SHARMA,  J.    The  question arising in  this  case  is whether a matter, if it comes within the scope of section 40 of  the  Bihar and Orissa Co-operative Societies  Act,  1935 (hereinafter referred to as the Act) has to be excluded from the purview of Section 48 of the Act.      2.  Special leave is granted..      3.  The facts relevant for the decision of this  appeal are in a short                                                     894 compass.   The respondent No.1 was Depot Manager  under  the appellant  Marketing Union Limited and during his tenure  as such,  a  shortage  of  coal  was  detected.   A  claim  was accordingly  made for the said loss by the appellant  and  a reference was made to the Assistant Registrar,  Co-operative Societies respondent No.3, under Section 48 of the Act.  The Assistant  Registrar absolved the respondent No.1  from  the alleged  liability and an appeal was filed by the  appellant under  Section 48(6) of the Act before the Joint  Registrar, Co-operative  Societies, respondent No.2, who  are  accepted the appellant’s case, rejected the defence and made an award accordingly.   This  was challenged before  the  Patna  High Court  by  a  writ  application under  Article  226  of  the Constitution  of India.  The High Court held that since  the matter was covered by the provisions of Section 40,  Section 48  could not apply.  Consequently the award was held to  be illegal. So far section 40 was concerned, it was pointed out that  the  claim  had  to  be  rejected  on  the  ground  of limitation.   Thus without considering the  other  questions raised  by  the  parties, the High Court  allowed  the  writ petition by the impugned judgement which is under  challenge in the present appeal.      4.   It has been contended on behalf of  the  appellant that the provisions of Section 48 are wide enough to embrace the dispute which has been the subject matter of the present case and they cannot be given a narrow interpretation so  as to  exclude  their application to cases which  may  also  be

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covered by Section 40.  In reply reliance has been placed on behalf  of  the  respondent No.1 on the  decision  in Purnea Ministerial Government Officer’s Co-operative Society Ltd.v. Abdul  Quddus, (1969) B.L.J.R. Vol. 11 969 which  has  found favour with the High Court.      5.   Section 40 pertaining to surcharge, provides  that if  as  a result of an audit or inquiry it  appears  to  the Registrar  that  any  person  who  has  taken  part  in  the organisation  or  management of the society or any  past  or present  officer  of the society has either made  a  payment contrary to law or has been guilty of misappropriation or of having   committed  similar  acts  detailed   therein,   the Registrar  may  inquire into the matter and  make  an  order requiring  him  to contribute an appropriate sum by  way  of compensation  to  the  assets of the  society.   The  second Proviso to sub-section (1) of the said section says that  no such  order  shall  be  passed in  respect  of  any  act  or ommission  which had occurred more than six  years  earlier. The  provisions of sub-section (1) of Section  48  (omitting the  explanations  which are not relevant  for  the  present issue) dealing with Disputes are in the                                                      895 following terms:          "(1)  If  any dispute touching the  business  of  a          registered society (other than a dispute  regarding          disciplinary  action  taken by the society  or  its          managing  committee against a paid servant  of  the          society) arises-          (a)  amongst   members,   past   members,   persons          claiming through members, past members or  deceased          members,  and sureties of members, past members  or          deceased members, whether such sureties are members          or non-members; or          (b) between a member, past member, persons claiming          through  a member, past member or deceased  member,          or  sureties of members, past members  or  deceased          members, whether such sureties are members or  non-          members and the society, its managing  committee or          any  officer,  agent  or servant of the society; or          (c)  between the society or its managing  committee          and  any past or present officer, agent or  servant          of the society; or          (d)  between the society and any  other  registered          society; or          (e)  between a financing bank authorised under  the          provisions  of  sub-section (1) of Sec.  16  and  a          person who is not a member of a registered society;          such dispute shall be referred to the Registrar:          Provided that no claim against a past member or the          estate  of a deceased member shall be treated as  a          dispute  if the liability of the past member or  of          the   estate  of  the  deceased  member  has   been          extinguished by virtue of Sec. 32 or Sec. 63".      The claim of the appellant against the respondent  No.1 is  clearly covered by clause (c) of sub-section  (1)  above and,  therefore,  could have been validly  referred  to  the Registrar under Section 48.  The argument, however, is  that since the matter is covered by Section 40, Section 48 should be held to be inapplicable.  The High Court agreed and  made the following observations:-                                                        896          "It  is well-known proposition of law that  when  a          matter  falls under any specific provision then  if          must  be  governed  by that provision  and  not  by          general  provisions  (Generalia  specialibus   non-

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        derogant)".      The  High  Court  has in  its  judgement  assumed  that whenever  a  specific remedy is made available  in  law  the other  remedy,  more  general in  nature,  necessarily  gets excluded.      6.  Validity of plural remedies, if available under the law,  cannot  be  doubted.  If any  standard   book  on  the subject  is  examined, it will be found that the  debate  is directed  to the application of the principle  of  election, where two or more remedies are available to a person.   Even if the two remedies happen to be inconsistent,they  continue for the person concerned to choose from, until he elects one of  them, commencing an action accordingly.  In the  present case  there is no such problem as no steps under Section  40 were ever taken by the appellant.  The provisions of Section 48 must, therefore, be held to be available to the appellant for recovery of the loss.      7.Our  view that a matter which may attract Section  40 of  the Act will continue to be governed by Section 48  also if  the  necessary conditions are fulfilled,  is  consistent with  the  decision  of this Court in  Prem  Jeet  Kumar  V. Surender  Gandotra  and others, [1991] Supp. 2  S.C.C.  215, arising  under the Delhi Co-operative Societies  Act,  1972. The two Acts are similar and Sections 40 and 48 of the Bihar Act  and  Sections 59 and 60 of the Delhi Act  are  in  pari materia.    The  reported  judgement  followed  an   earlier decision  of  this  Court  in  Pentakota  Srirakulu  v.  Co- operative  Marketing Society Ltd., [1965] 1 S.C.R. 186.   We accordingly  hold  that  the  High Court  was  in  error  in assuming that the application of provisions of Section 48 of the  Bihar Act could not be applied to the present case  for the reason that Section 40 was attracted.      8.   So far the question of limitation is concerned  it is true that as in the Delhi Act, a period of six years  was fixed  under  the  Bihar Act also by  second  Proviso  under Section 40 (1), which reads thus:-      "Provided  further that no order shall be passed  under this  sub-section  in  respect  of  any  act  or    omission mentioned in clauses (a), (b), (c) or (d) except within  six years of the date on which such act or omission                                                       897 occurred."      It  will  be  observed  that  the  six  years  rule  of limitation,  however, is limited for the purpose of  section 40,  and cannot govern the reference under section 48.   The relevant  provision  of  section 48 is to be  found  in  the Proviso  to section 48(1) which has been quoted above.   For determining its  impact on the present case it is  necessary to  examine the Proviso closely.  Firstly, both the  Proviso and section 63 of the Act are concerned only where the claim is  against  a member.  Even if the Proviso  be  assumed  to govern a dispute between the society and its past or present officer or servant it cannot  come to the aid of the present respondent  No.1  because he was dismissed from  service  on 15.10.1966  and  he was directed to  deposit   the  disputed amount  within 30 days therefrom.  The dispute was  referred for  adjudication  under section 48 on  12.12.1966  and  the reference  was  registered as Award Case No. 25 of  1968  on 03.08.1968.  Thus all these steps were taken within a period of  two  years.  No reliance, therefore, can  be  placed  on either  section  32 or 63.  The case  of  Putnea Ministerial government  Officers’ Co-operative Society Ltd.  (Supra)  is clearly distinguishable.  The respondent there was a  member of  the Society in question and had taken a loan  which  was the  subject matter of the dispute.  As was pointed  out  by

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the High Court the claim had stood barred by limitation and, therefore, it was held that the reference was incompetent in view of the Proviso to section 48(1).  The High Court in the present  case  was, in the circumstances,  not  entitled  to rely  on this decision and its conclusions must be set aside as being erroneous in law.      9.   However, since in the judgement it is stated  that several  other questions were also raised on behalf  of  the respondent No.1 (who was the writ petitioner) which remained undecided,  the  case requires reconsideration by  the  High Court  on  the remaining points.  Accordingly  the  impugned judgement is set aside and the writ petition is remitted  to the  High  Court for fresh decision in accordance  with  the observations  in  the  present  judgement.   The  appeal  is allowed but in the circumstances without costs. U.R.                                      Appeal allowed.                                                       898