THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.A.NOS.318 AND 325 of 2010 15-09-2010 BETWEEN; M/s Super Electronics, rep. By sole proprietor Ramesh Mehta ...Appellant vs. The Deputy Registrar of Cooperatie Societies, Hyderabad and others ...Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.A.Nos.318 & 325 of 2010 ORAL COMMON ORDER: (Per GR,J) The appeals are directed against the judgment dated 11 03-2010 in W.P.No.5632 and 5633 of 2010, respectively, rejecting the wr petitions. The appellants who are the writ petitioners filed the respectiv writ petitions substantially aggrieved by the order of the A.P. Cooperativ Tribunal, Hyderabad (the Tribunal) dated 25-02-2010 in IA.Nos.438 an 437 of 2009 rejecting their applications for condonation of a delay of 116 days in filing the respective appeals against orders passed by the Deput Registrar of Cooperative Societies, dated 24-04-2006, whereby certificate were issued for recovery of the amounts allegedly due from the appellant to the 2nd respondent herein-the Aryan Co-operative Urban Bank Limited under the provisions of the A.P. Co-operative Societies Act,1964 ( for sho “the Act”). The appellants allegedly defaulted on the amounts due to the ban and the bank applied to the Deputy Registrar of Cooperative Societie under Section 70(1) of the Act for issuance of a certificate to enabl recovery of the amounts due to it. The Deputy Registrar of Cooperativ Societies thereupon passed orders in ARC Nos.532 and 531 of 2004 respectively issuing certificates for recovery of the amounts. Aggrieve thereby, the appellants, instead of preferring appeals to the Tribunal, file writ petitions challenging the vires of the Act on the ground that the Stat has no legislative competence to enact a law providing for adjudication o disputes relating to a Co-operative Bank, on the ground that the legislativ field pertaining to banks including Co-operative banks falls within th ambit of the Union and not the State, relying upon a decision of a Learne Full Bench of this court in M.Babu Rao Vs. Deputy Registrar o Cooperative Societies([1]). This Court has held in the decision supra tha the legislative field pertaining inter alia to recovery of dues of a Co operative bank falls within the legislative field of ‘banking’ in Entry-45 o List.I and was outside the purview of Entry 32 of List.II; and invalidate certain provisions of the Act including the relevant provisions of Sectio 70(1) of the Act which enabled issuance of a certificate for recovery of th amount due by a borrower to a Co-operative bank. The decision of thi Court in M.Babu Rao (supra) was however reversed by the Suprem Court in Greater Bombay Cooperative Bank Limited Vs. United Yar Textiles (Private) Limited and Others([2]). As a consequence of th decision of the Supreme court, the issue as to the legislative competenc of the State qua Entry 32 of List II stood resolved and the provisions o Section 70(1) of the Act proprio vigore operate to enable issuance of certificate for recovery of the debts due by a borrower to a Co-operativ bank. In view of the legal position now settled, the writ petitions filed by th appellants were disposed of with a liberty to the appellants to pursu appeals before the Tribunal, under Section 76(3) of the Act. This cou observed (in the earlier writ petitions filed by the appellants) that appellants prefer appeals within four weeks from the date of judgment (11 06-2008), the Tribunal shall entertain the appeals and pass appropriat orders on the merits of the appeals, in accordance with law. This facility o preferring the appeals within the time stipulated by this Court was grante in the circumstance that the appellants had crossed the stipulated period o sixty (60) days under Section 76(3) of the Act for preferring the appeals a they were pursuing the writ petitions earlier filed by them. However, the appellants instead of filing appeals before the Tribuna within the period permitted by this Court, had filed the appeals beyond th period of four (4) weeks and computed from the date of the orders of th Deputy Registrar of Co-operative Societies, the delay in each of th appeals filed was of the order of 1164 days. The appellants therefore file appeals along with the applications (I.A.Nos.438 and 437 of 200 respectively) seeking condonation of the delay of 1164 days in preferrin the appeals. By separate orders, both dated 25-02-2010 the learned Co-operativ Tribunal rejected the respective applications filed by the appellants herei for condonation of delay. The Tribunal held that it had no jurisdiction t condone the delay beyond the period permitted by the High Court, by th judgments in the earlier writ petitions ( i.e., four weeks). In para.8 of th order however, the Tribunal held that even after the period of four week permitted by the High Court, there is a delay of more than one (1) year an from the date of the certificate issued by the Deputy Registrar of Co operative Societies, the delay is of the order of 1164 days and the only th justification presented for such delay was the shifting of the offices of th appellants, not an adequate justification for condonation of such abnorma delay. The Tribunal also observed that nothing prevented the appellants even if the files were misplaced during the shifting of the office premises from obtaining certified copies of the orders of the Deputy Registrar an filing appeals within a reasonable time thereafter. In conclusion howeve the Tribunal held that since the High Court had fixed the period, th appellants were disabled to seek extension of time from it, beyond the tim fixed by the High Court. Aggrieved by the orders of the Tribunal, rejectin I.A.Nos.428 and 437 of 2009, the appellants filed the writ petitions. The learned single Judge found no error in the exercise of discretio by the Tribunal in declining to condone the abnormal delay of 1164 days The learned single Judge rightly observed that no adequate justificatio was pleaded in the affidavit filed in support of the delay condonatio application except a breezy pleading that the delay was occasioned by th misplacement of file. Sri M.Laxmi Prasad, the learned counsel for the Appellants whil reiterating the self same grounds as were unsuccessfully urged before th learned single Judge, additionally contends that while there is som negligence on the part of the appellants in filing appeals before th Tribunal beyond the time stipulated by this Court or even within a sho while thereafter. On account of such lapse alone, the substantive appellat remedies of the appellants should not be denied. The appellants may b permitted to pursue the appeals before the Tribunal on merits on stringen terms by way of costs to compensate the 2nd respondent/Bank for th trauma involved in the protracted litigation. The learned counsel for th appellants has filed memos today accompanied by two (2) account paye demand drafts drawn in favour of the 2nd respondent/ban represented by the Liquidator, bearing Nos.435473 and 435474 drawn o the Syndicate Bank, Hyderabad in an amount of Rs.10,000/- each toward costs payable to the 2nd respondent for the two cases (appeals) as recompose for the protracted litigative trauma that the 2nd respondent/ban has to suffer as a result of the inordinate delay and latches by th appellants in prosecuting their appellate remedies. In the facts and circumstances of the case though we find no erro either in the order of the A.P. Co-operative Tribunal (in rejecting th applications for condonation of a delay filed by the appellants) nor in th order of the learned single Judge rejecting the writ petitions, in view of th willingness of the appellants to pay substantial costs to the 2nd responden for the delay in preferring the appeals, we consider it appropriate t exercise discretion to permit the appellants to prefer the appeals afte condoning the delay. The two (2) account payee demand drafts fo Rs.10,000/- each shall be handed over by the learned counsel for th appellants to the 2nd respondent-Bank along with a copy of this order. In consequence, the writ appeals are allowed. The judgments unde appeal in W.P.Nos.5633 and 5632 of 2010 are set aside as are the order of the A.P. Co-Operative Tribunal dated 25-02-2010 in I.A.Nos.438 an 437 of 2009; these I.As seeking condonation of delay of 1146 days i preferring the respective appeals by the appellants herein are ordered an the delay is condoned. The learned Tribunal shall expeditiously dispose o the appeals, preferably within a period of six (6) months from the date o receipt of a copy of this Order. The appellants and the 2nd respondent/ban shall cooperate with the Cooperative Tribunal in ensuring the disposal o the appeals within the time stipulated by this Court and if any of the partie do not cooperate with the schedule fixed by the Tribunal for disposal of th appeals, the Tribunal may proceed with the adjudication of the appeals e parte, if so warranted. No order as to costs. ______________ GODA RAGHURAM,J ___________________ SAMUDRALA GOVINDARAJULU,J 15TH SEPTEMBER 2010. TSNR [1] 2005(4) ALT 327 [2] AIR 2007 SC 1584