1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MISC. CIVIL APPLICATION NO. 30 OF 2007 MISC. CIVIL APPLICATION NO. 30 OF 2007 MISC. CIVIL APPLICATION NO. 30 OF 2007 Shri Suresh Narhar Kulkarni ... Applicant Versus Sangli Urban Co-operative Bank Ltd. & Ors. ... Respondents Shri A.M.Kulkarni, Advocate, for the applicant. Shri N.V.Walawalkar, Senior Counsel, i/b. Shri G.H.Keluskar, Advocate for Respondents Nos. 1 & 2. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 3rd June, 2008. DATE: 3rd June, 2008. DATE: 3rd June, 2008. P.C. C. C. 1. Heard the learned Counsel for the parties. 2. Admitted facts are that the applicant before this Court was the Chief Executive Officer of the respondent No.1-Bank and the respondent No.3 was also an employee of the same Bank. The applicant filed Dispute No.153/2002 against the respondent nos. 1 ad 2 before the Co-operative Court, Sangli,seeking certain declarations about acceptance of his resignation and 2 seeking certain reliefs against the Bank. That dispute was filed in February, 2002. Thereafter on 9.8.2002, the respondent No.1 Bank filed Dispute No.456/2002 against the present applicant for recovery of certain amount before the Co-operative Court at Sangli. Thereafter, in December,2002, the respondent No.1-Bank filed Dispute No.401/2002 against the preset applicant before the Co-operative Court at Pune for recovery of certain amount. Admittedly, all the three disputes are pending at different stages. The dispute No.401/2002 is, admittedly, part-heard before the Co-operative Court, Pune. The present applicant made transfer application No.48/2006 before the President, Co-operative Appellate court seeking transfer of the Dispute No.401/2002 from the Co-operative Court at Pune to the Co-operative Court No.1 at Sangli before whom the other two disputes are pending. According to him, in the year 2004, he had undergone angioplasty and because of old age and ill-health, he is unable to attend the Court at Pune. This request was turned down by the President, Co-operative Court by rejecting that application as per the order dated 31.1.2007. After that, the applicant has filed the preset application before this Court under Section 24 of the Code of Civil Procedure for transfer of Dispute No.401/2002 from the Co-operative Court, Pune to the Co-operative Court, Sangli. 3 3. Mr. Walawalkar, learned Senior Counsel for the respondent No.1 contested the application mainly on the ground that once the applicant had adopted a certain proceeding under Section 93 of the Maharashtra Co-operative Societies Act by filing an application before the President, Co-operative Appellate Court for transfer of the said matter and had lost that, he cannot file proceeding of the same nature under Section 24 of the C.P.C. before the High Court. According to him, the findings and observations of the President, Co-operative Appellate Court operate as res judicata in the present matter. The learned Senior Counsel contended that the applicant could adopt appropriate remedy against that order, maybe way of revision or writ petition. In support of his contention the learned Senior Counsel relied upon the two authorities. In Letters Patent Appeal No.242/2005 (The General Letters Patent Appeal No.242/2005 (The General Letters Patent Appeal No.242/2005 (The General Manager, Sarva Shramik Sangh vs. Chief Executive Manager, Sarva Shramik Sangh vs. Chief Executive Manager, Sarva Shramik Sangh vs. Chief Executive Officer, Sangli Uban Co-op. Bank and Ors), Officer, Sangli Uban Co-op. Bank and Ors), Officer, Sangli Uban Co-op. Bank and Ors), the Division Bench of this Court held that the applicant therein had two remedies available, one under Section 33C of the Industrial Disputes Act and another under Section 15(2) of the Payment of Wages Act and out of the two remedies available, the appellants therein had selected the remedy under Section 33C of the Industrial Disputes Act and recovery certificate was granted in favour of the appellants. In such circumstances the appellants could not be allowed to adopt another remedy 4 under Section 15(2) of the Payment of Wages Act. In In In Pondicherry Khadi & Village Industries Board vs. Pondicherry Khadi & Village Industries Board vs. Pondicherry Khadi & Village Industries Board vs. P.Kulothangan and another 2004(1) SCC 68 P.Kulothangan and another 2004(1) SCC 68 P.Kulothangan and another 2004(1) SCC 68 the respondent had filed the writ petition before the Madras High Court seeking permission to continue in employment alleging that he was wrongfully refused employment by the appellant. The writ petition was contested and it was dismissed. Appeal against that was also dismissed by the Division Bench. After that the respondent raised dispute under the Industrial Disputes Act before the Labour Court. The Labour Court allowed his application. The order of the Labour Court came to be challenged by the appellant by way of a writ petition alleging that the proceeding before the Labour Court was barred by the principles of res judicata. That writ petition was dismissed and even the appeal filed by the appellant before the Division Bench came to be dismissed. The appellant went to the Supreme Court in Special Leave Petition and Their Lordships of the Supreme Court observed that in the first proceeding before the High Court on merits the respondent had lost the case and therefore he could not adopt the remedy of filing an application under the Industrial Disputes Act before the Labour Court as the findings of the High Court in the earlier Writ Petition would operate as a res judicata. 4. Having gone through the facts of the two cases 5 and the legal position, I am unable to accept the contention of the learned Senior Counsel for the respondent No.1 that the principles of res judicata would be applicable in the present case. In the present case the lis between the parties has not been decided nor any findings have been given by any of the Courts. The disputes between the parties are still pending before the Co-operative Courts. The applicant only wanted that all the dispute pending before the Co-operative Court at Pune be transferred to the Co-operative Court, Sangli, where other two disputes are also pending for the reasons given by him. Under Section 93 of the Co-operative Societies Act the President of the Co-operative Appellate Court has got power to entertain such application for transfer. However, after hearing the parties, the learned President rejected that application. Under Section 24 of the C.P.C., the High Court has got general power of withdrawal of any suit, appeal or other proceeding pending before any subordinate court and transfer of the same to some other Court for the purpose of trial and disposal. There is no dispute that the Co-operative Courts in the State of Maharashtra have been held to be Courts subordinate to the Bombay High Court under Article 227 of the Constitution and, therefore, under Section 24 of the C.P.C., the High Court has got general or plenary powers to withdraw any matter from any subordinate Court and to transfer the 6 same to any other courts for the purpose of trial or disposal under law. If the President of the Co-operative Appellate Court refuses to transfer the matter from the Pune Court to the Sangli Court, it does not mean that the observation of the President, Co-operative Appellate Court would operate as a res judicata, if similar application for transfer is moved before the High Court under Section 24 of C.P.c. As the application for transfer can be filed before both the Courts, naturally, the applicant first approached the lower authority and having failed in getting appropriate orders, he has approached the High Court for same relief. It does not mean that firstly he had adopted a proceeding before one competent authority under certain provisions of law and having lost that he has adopted another proceeding for the same remedy before different authority. In fact, it is expected that when similar relief can be granted by the two authorities, one by the High Court and another by the District Court or the President, Co-operative Appellate Court, the party should first approach the lower authority i.e. the District Court or the President, Co-operative Appellate Court and if he does not succeed, then the party may approach the High Court for the same relief. For example, it is well-established that a person may approach the Sessions Court as well as the High Court for the purpose of anticipatory bail under Section 438 Cr.P.C. but as a normal practice, 7 the party is expected to first approach the Sessions Court and only after having failed to secure the order, he may approach the High Court. If the application before the Sessions Court is rejected, it does not operate as a res judicata if similar application is made before the High Court under Section 438. The same principles or analogy will be applicable in the present case. Therefore, I am unable to accept the contention raised by the Senior Counsel on behalf of the respondent No.1 that the order passed by the President, Co-operative Appellate Court operates as res judicata in the present matter. 5. Now coming to the facts of the case, admittedly, the respondent No.1 is a Co-operative Bank having its head office at Sangli. The respondent NO.2 is the Chairman of that Bank. He is also residing at Sangli. The applicant and respondent No.3, who is also opponent in the dispute is residing at Sangli. Admittedly, the first dispute No.153/2002 was filed by the applicant before the Co-operative Court at Sangli. Thereafter, the respondent No.1-Bank filed Dispute No.456/2002 also before the Co-operative Court at Sangli. However, Dispute No.401/2002 was filed by the respondent No.1 before the Co-operative Court at Pune because the cause of action for the dispute had arisen within the jurisdiction of the Co-operative Court at Pune. Nobody has disputed the jurisdiction of the 8 Co-operative Court at Pune in respect of the Dispute No.401/2002 nor there is any grievance against the Judge, presiding over that Court. The applicant only contended that because of the ill-health and his old age, it is inconvenient for him to travel to Pune and if the dispute before the Co-operative Court is transferred from Pune to Sangli, it will not cause any inconvenience to any party. However, the President, Co-operative Appellate Court rejected this contention mainly on the ground that inspite of angioplasty undergone by the applicant in 2004, he had appeared before the Co-operative Court at Pune. Secondly, he observed that the dispute before the Co-operative Court, Pune was part-heard. It appears that the affidavit of examination-in-chief of one of the witnesses has been filed. Cross-examination is yet to be undertaken. Some more witnesses for the Bank are yet to be examined. In fact, when all the parties are located at Sangli, there would be absolutely no difficulty or inconvenience to any of parties, if the dispute before the Co-operative Court, Pune, would be transferred to Sangli. In fact, it would be more convenient to all the parties. It is contended on behalf of the bank that in respect of the Dispute No.401/2002, the record is available with the Pune Branch of the Bank. That itself cannot be a ground to reject the application. Head Office of the Bank is at Sangli. Most of the witnesses to be examined are 9 available at Sangli. If the Bank is required to call some of its witnesses from its Pune Branch, it will not cause any inconvenience to him. The applicant was 63 years old when he first moved the application for transfer and now he is aged about 65 years. He is a senior citizen. Having already suffered some heart disease, he is suffering from poor health and if with these reasons he contends that it is inconvenient for him to travel from Sangli to Pune, there is no reason to disbelieve him. In my considered opinion, the President, Co-operative Appellate Court did not consider the facts and circumstances in proper perspective while rejecting the application. Anyhow, by virtue of the powers under Section 24 of C.P.C., this Court can pass appropriate directions in this respect. 6. In view of the facts and circumstances, the Application is allowed. The Dispute No.401/2002 is hereby withdrawn from the file of the Co-operative Court No.2 at Pune and is hereby transferred to the file of the Co-operative Court No.1 at Sangli for hearing and disposal along with Dispute NO.153/2002 and Dispute No.456/2002. 7. At this stage, Mr. Walawalkar, learned Senior Counsel makes a request to stay the operation of this order for six weeks. Mr. Kulkarni, learned Counsel 10 for the applicant objects to this. However, in the interest of justice and fairplay, this order shall not take effect for six weeks from this date. However, the Co-operative Court, Pune, shall also not proceed with the matter during the said period. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)