IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH W.A.No.1342 of 2003 Sriram Chits Tamil Nadu (P) Ltd., rep.by its Executive Director No.107, Usman Road T.Nagar, Chennai 600 017 .. Appellant -Vs- 1. The State of Tamil Nadu rep. by its Secretary to Government Commercial Taxes Department Secretariat, Chennai 600 009 2. The Deputy Registrar of Chits Tiruppur 3. Suriya Chit Funds rep.by Foreman P.Kusela Gupta 189, Bazaar Street, Pollachi 4. S.M.Bakir Mohammed .. Respondents Appeal filed under item 15 of the Letters Patent against the order dated 17.4.2002 made in W.P.No.2049 of 2002. Writ Petition filed under Article 226 of constitution of India to issue a writ of Certiorarified Mandamus to calling for the records of the first respondent herein letter No.26144/G/2000-I dt. 13.12.2000 and quash the same and consequently direct the first respondent to take the appeal of the petitioner against the order dt.7.3.2000 in ARC No.29/99 of the second respondent herein on file. For Appellant :: Mr.M.S.Krishnan Senior Counsel for M/s Sarvabhauman Associates For Respondents :: Mr.R.Thirugnanam Spl. Government Pleader for R1 & R2 No appearance for R3 Mrs.AL.Ganthimathi for R4 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.) The appellant is Sriram Chits Tamil Nadu (Private) Limited. The fourth respondent by name S.M.Bakir Mohammed approached this Court by filing Writ Petition No.2049 of 2002 questioning the order of the Secretary to Government, Commercial Taxes Department dated 13.12.2000 and for a consequential direction to the Secretary to Government to take the appeal of the fourth respondent/writ petitioner filed against the order of the Deputy Registrar of Chits dated 7.2.2000. 2. The writ petition came to be filed on the following facts:- The fourth respondent (hereinafter referred to as "the writ petitioner") was a subscriber to a chit under the Agreement No.72 of 1994 in Suriya Chit Funds, Pollachi, namely, the third respondent and the maturity amount of which was Rs.50,000/- payable in 20 instalments i.e., Rs.2500 x 20. He had been regularly paying the instalments and during the sixth auction, he bid the auction and took the chit for Rs.35,000/-. According to him, he has paid the entire amount towards the bid and there was no dues. However, Suriya Chit Funds, the third respondent, filed an arbitration case against the writ petitioner before the Deputy Registrar of Chits for recovery of a sum of Rs.25,000/- with interest alleging that the writ petitioner did not pay six instalments to the tune of Rs.15,000/-. An award for recovery of money dated 7.2.2000 was passed, against which an appeal was filed on 16.11.2000 before the Secretary to Government, Commercial Taxes Department, but the appeal was dismissed by order dated 13.12.2000 on the ground that it was not filed in time. 3. The above order was questioned by the writ petitioner and by the impugned order, the learned single Judge quashed the order of the Secretary to Government and remitted the matter back to him for consideration of the appeal on merits. For completion of the facts, it must be also stated that pursuant to the order of the learned single Judge, the appeal was also taken up for hearing and was dismissed on merits. 4. While quashing the above order, taking into consideration that number of identical petitions are being filed, the learned Judge has passed the following order in paragraph-28: "Before parting with the case, this Court deems it essential to issue directions as number of identical petitions are being filed since there is no rule to communicate the award nor there is a rule, which provides for intimation of passing of the award. Hence, every time there is a controversy, the parties moved this Court. To avoid such circumstances, https://hcservices.ecourts.gov.in/hcservices/ this Court directs the State Government to issue the following directions to all the Registrar of Chits who act as Arbitrators:- (i) to intimate the date on which the award is passed; (ii) to communicate the copy of the award with necessary endorsements as to date of award, date of despatch by Registered Post Acknowledgment Due; and (iii) towards expenses incurred in this respect, the claimant before the Arbitrator may be required to provide the cost in advance for forwarding the copy of the award by Registered Post Acknowledgment Due and the said cost could be included in the award for being reimbursed by the judgment debtors. Such a course alone avoid circumstances of the present nature." 5. As against the order of the learned single Judge in directing the Secretary to Government, Commercial Taxes Department to entertain the appeal and dispose of the same on merits, the State has not preferred any appeal. Therefore, that portion of the order had become final. 6. However, the appellant-Sriram Chits Tamil Nadu Private Limited, who was not a party to the writ petition, made an application before this Court seeking leave to appeal on the ground that the three directions in paragraph-28 of the order are not at all in conformity with the rule 49 of the Chit Funds Rules, 1984 and the directions also amounted to inserting something into the rules, which the legislature did not intend. By order dated 6.3.2003, in W.A.M.P.No.1156 of 2003, leave was granted. 7. We have heard Mr.M.S.Krishnan, learned senior counsel appearing for the appellant. He would submit that the impugned directions would cause great hardship to the appellant, as the appellant has filed nearly 5,825 arbitration cases involving a sum of Rs.13 crores and those applications are pending. He would also submit that around 15,771 cases involving Rs.8.50 crores are to be filed. The projected expenditure in complying with the directions of the learned Judge would work out to nearly Rs.31,36,819/-. These directions were issued without hearing the companies who are engaged in chit fund transactions. Apart from the above submission on facts, the learned senior counsel would submit that rule 49(1) of the Chit Funds Rules provides that a decision should be given by the Registrar or his nominee in the open Court either at once or as soon as may be practicable on some future day, of which due notice shall be given to the parties. In terms of the said rule, a notice, before the award is pronounced, should be given to the parties in the application, which necessarily means that by virtue of such notice, the parties should appear on the date when the award is to be pronounced. When there is a specific rule, the direction of the learned single Judge contained in (i) of paragraph-28 is https://hcservices.ecourts.gov.in/hcservices/ unnecessary. 8. So far as the directions contained in (ii) and (iii) of paragraph-28 are concerned, the learned senior counsel would submit that in terms of rule 49(6), any party to a dispute may apply for and obtain a certified copy of any order, judgment or award made by the Registrar or his nominee on payment of copying fees at the rate prescribed in Appendix-II of the Rules. This provision is made in consonance with the provisions governing the application for certified copies of the order in civil matters. The intention of the legislature is, therefore, when once the pronouncement of the award is notified and served on the parties and the award is pronounced, it is for the subscriber to either apply for certified copy of the award and the Registrar or his nominee is obligated to make the copy available on payment of the prescribed fee in Appendix-II of the Rules. The learned senior counsel would draw our attention to item 19 of Appendix-II relating to the prescription of fee of Rs.1.00 for every 100 words or fraction thereof subject to a minimum of Rs.35 for a certified copy of any order or judgment or award made by the Registrar or his nominee under section 69. Hence the directions would amount to legislating something which are not at all found in the rules. He would submit that when the rules are so clear, the three directions issued by this Court would run contra to the very rules themselves. Hence the learned senior counsel submitted that the impugned directions should be set aside. 9. Mr.R.Thirugnanam, learned Special Government Pleader appearing for the respondents 1 & 2 would submit that pursuant to the directions of this Court, impugned in this appeal, the Government had issued a circular on 20.1.2003 and the copies of the circular were communicated to all the chit fund companies. The appellant, being not a party to the writ proceedings, if aggrieved, should have questioned the said circular and instead, it has chosen to file this appeal. He would also submit that this Court had to issue the directions in view of of the fact that number of identical petitions are being filed and the copies of the award are not communicated to the parties to enable them to work out their remedy by filing appeal in time and in most of the cases, the appeals are not entertained on the ground that they are not filed in time. 10. Mrs.AL.Ganthimathi, learned counsel appearing for the writ petitioner has submitted that pursuant to the order of the learned single Judge in directing the first respondent to consider and pass orders on the appeal, the Secretary to Government, Commercial Taxes Department having considered and disposed of the appeal, the writ petitioner has nothing to contest in the matter. 11. We have carefully considered the above submissions. The issue before the learned single Judge was in respect of a claim made by Suriya Chit Funds, the third respondent against one S.M.Bakir Mohammed. As against the order of the Deputy Registrar of Chits, Tiruppur accepting the claim of Suriya Chit Funds, an https://hcservices.ecourts.gov.in/hcservices/ appeal was preferred and the appeal was also dismissed. On facts, the lis between the Suriya Chit Funds and S.M.Bakir Mohammed does not survive as on today, leaving only the directions of the learned single Judge issued in paragraph-28 of the order, which we have extracted in the earlier portion of this order. As the arguments were advanced on Rule 49 of the Chit Funds Rules, we propose to extract the relevant rules as under: 49.Procedure for hearing and decision of disputes.--(1) The Registrar or his nominee shall record in the official language in vogue in the State, the evidence of the parties to the dispute and the witnesses who attend. Upon the evidence so recorded and upon consideration of any documentary evidence produced by the parties, a decision shall be given by him in writing. Such decision shall be pronounced in the open court, either at once or as soon as may be practicable on some future day, of which due notice shall be given to the parties. (2).... (3).... (4).... (5).... (6) Any party to a dispute may apply for and obtain a certified copy of any order, judgment or award made by the Registrar or his nominee on payment of copying fees, at the rate prescribed in Appendix II." 12. A perusal of sub-rule (1) of rule 49 shows that while the proceedings are taken up and the parties are heard, the Registrar or his nominee shall record in the official language in vogue in the State, the evidence of the parties to the dispute and the witnesses who attend. After recording the evidence, he should consider any documentary evidence produced by the parties and thereafter he should give a decision in writing. Such decision should be pronounced in the open court, either at once or as soon as may be practicable on some future day. By that rule, the Registrar or his nominee is entitled to pronounce the decision in the open court immediately. In case if such a decision could not be pronounced immediately, he may give a date for pronouncement of such decision. In such event, it is mandatory for the Registrar or his nominee to intimate the parties the date on which the award would be passed or pronounced. By virtue of the said rule, it is clear that the award shall be pronounced either in the presence of the parties to the application or on a date fixed by the Registrar or his nominee to pronounce the award and such date had been intimated to the parties in advance. In the event the Registrar or his nominee could not pronounce the award immediately, namely, at once, and in the event no notice is served on the parties as to the date on which the award would be pronounced, certainly, the parties would be put to great hardship as to the pronouncement of the award, necessarily meaning that the issue of notice to the parties https://hcservices.ecourts.gov.in/hcservices/ intimating the date is mandatory. 13. A perusal of sub-rule (6) of rule 49 shows that when once an award is pronounced in the open court or is pronounced on the date so notified and served on the parties, the parties to the dispute may apply for and obtain a certified copy of the order, judgment or award made by the Registrar or his nominee, of course, on payment of copying fee as prescribed in item 19 of Appendix-II of the Rules. As the pronouncement of the award is made known to the parties, it is for the parties either to file application by paying the prescribed fee. A conjoined reading of sub-rules (1) and (6) of rule 49 of the Rules would show that it is for the party who has become aware as to the pronouncement of the award to file an application for copy of the order, judgment or award by paying the prescribed fee. Therefore, the question of forwarding the copy of the award by the Registrar or his nominee without there being a proper application does not arise. 14. The question as to whether this Court could issue directions which would in effect amount to legislating something that are not found in the Act or the Rules, more particularly, by way of interpreting the statute, which is otherwise clear and unambiguous, came up for consideration before the Supreme Court in more than one case. In Sm.Hira Devi and others v. District Board, Shahjahanpur, AIR 1952 SC 362, the Supreme Court has observed as follows:- "14.....No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act." In The Commissioner of Sales Tax, Uttar Pradesh v. M/s Parson Tools and Plants, Kanpur, AIR 1975 SC 1039, the Supreme Court has observed as follows:- "12. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity." 15. In Commissioner of Income Tax, Central Calcutta v. National Taj Traders, AIR 1980 SC 485, the Supreme Court has observed as follows:- "10. A casus omissus cannot be supplied by https://hcservices.ecourts.gov.in/hcservices/ the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every item of a section should be construed with reference to the context and other items thereof so that the construction to be put on a particular provisions makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature." In M/s Unique Butyle Tube Industries Pvt.Ltd. v. U.P.Financial Corporation and others, AIR 2003 SC 2103, the Supreme Court has observed as follows:- "11. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. 13. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process." The same view has been taken in Union of India v. Rajiv Kumar, AIR 2003 SC 2917. 16. The Supreme Court in Commissioner of Income Tax, Kerala v. Tara Agencies, (2007) 6 SCC 429, has observed as follows:- "57. The intention of the legislature has to be gathered from the language used in the statute which means that attention should be paid to what has been said as also to what has not been said. 58. In Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323, a three-Judge Bench of this Court held that it is not the duty https://hcservices.ecourts.gov.in/hcservices/ of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. 59. In State of Kerala v. Mathai Verghese, (1986) 4 SCC 746, this Court has reiterated the well-settled position that the court can merely interpret the section; it cannot rewrite, recast or redesign the section. In interpreting the provision the exercise undertaken by the court is to make explicit the intention of the legislature which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to "legislate" have not been conferred on the court. 60. In Gwalior Rayons Silk Mfg. (Wvg.) Co.Ltd. v. Custodian of Vested Forests, 1990 Supp SCC 785, the Court rightly observed that in seeking legislative intention judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. 61. The House of Lords in Pinner v. Everett, (1969) 1 WLR 1266, aptly observed that we have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute. 62. Therefore, the legal position seems to be clear and consistent that it is the bounden duty and obligation of the court to interpret the statute as it is. It is contrary to all rules of construction to read words into a statute which the legislature in its wisdom has deliberately not incorporated." 17. A survey of the above judgments would make it clear that this Court cannot by its order direct the Government to issue orders which would rather amount to legislating something into the Chit Funds Rules without there being an amendment to the very rules themselves, framed in exercise of the powers conferred under Section 89 of the Chit Funds Act. So far as the direction contained in (i) of paragraph-28 of the order is concerned, as observed by us, in terms of rule 49(1) of the Chit Funds Rules, it is mandatory for the Registrar or his nominee to pronounce the award in the open court either at once i.e., immediately after consideration of the evidence, both oral and documentary, and such pronouncement of the award should be in writing, or on some future date which is notified and intimated to the parties so as to enable the parties https://hcservices.ecourts.gov.in/hcservices/ to be present on the date when the award is to be pronounced. In fact rule 50 relates to the issuance of summonses, notices and fixing of dates, places, etc., in connection with the disputes, which reads as under:- "50. Summonses, notices and fixing of dates, places, etc., in connection with the disputes.--(1) The Registrar, or, as the case may be, his nominee, may issue summonses or notices at at least fifteen days before the date fixed for the hearing of the dispute requiring: (i) the attendance of the parties to the dispute and of witnesses, if any; and (ii) the production of all books and documents relating to the matter in dispute. (2) Summonses or notices issued by the Registrar or his nominee may be served through a Tahsildar or any employee of the Chit Department or by registered post with acknowledgment due. (3) The Officer serving a summons or notice shall, in all cases in which summons or notice has been served, endorse or annex or cause to be endorsed on or annexed to, the original summons or notice, a return stating the time when, and the manner in which, the summons or, as the case may be notice was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons or the notice. (4) The Official issuing the summons or notice may examine the serving officer on oath or cause him to be so examined by the Officer through whom it is served and may make such further inquiry in the matter as he thinks fit; and shall either declare that the summons or, as the case may be, notice has been duly served or order it to be served in such manner as he thinks fit. (5) The mode of serving summonses and notices as laid down in sub-rules (1) to (4) shall mutatis mutandis apply to the service of summonses or notices issued by the Registrar or the person authorised by him when acting under section 46." The rules framed in exercise of the powers conferred under Section 89 of the Chit Funds Act should be strictly followed by the Registrar or his nominee not only to record the evidence or to consider the evidence, both oral and documentary, but also to pronounce the award in writing on the date which is notified and intimated to the parties. While the rule is so clear and unambiguous, in our considered view, the question of issuing directions to the Government to further direct all the Registrar of Chits to intimate the date of award is unnecessary. https://hcservices.ecourts.gov.in/hcservices/ 18. So far as the directions contained in (ii) and (iii) of paragraph-28 of the order are concerned, in the wake of sub-rule (1) of rule 49, it is the discretion of the parties either to apply or not to apply for certified copies by paying the fee as prescribed in item 19 of Appendix-II of the Rules. The Registrar or his nominee is obligated to furnish the certified copy of such award only in the event an application is made as per sub-rule (6) of rule 49. While the rule is so specific, issuing of directions to the Government in order to direct all the Registrar of Chits to communicate the copy of the award with necessary endorsements as to date of award, date of despatch by registered post acknowledgment due would in effect amount to inserting something into the rules, which is impermissible. For the same reason, when the rule contemplates a specific fee to be paid for furnishing the certified copy, it will be importing