THE KALYAN PEOPLE'S CO-OPERATIVE BANK versus DULHANBIBI, AQUAL AMINSAHEB PATIL

--- ' , ' /

,,_- -,..

348 · SUPREME COURT R_~PORT~ [1963]

. April t:J._ ..

THE KALYAN PEOPLE'S CO·OPERATIVE BANK v.

'~,

DULHANBIBI, AQUAL AMINSAHEB· PATIL (J. L. Kutra, K. C. DAS GuPrA and RAGHUBAR DA~AL; JJ.)

.

Co-operative Society-Arbitration:_Tribunal, if and whe1' can act. on· evidence taken befOTe previous Tribunal-Party con aenting to· such\evidence-if can object later-Bombay Co-oper. · ative Societies Act, 1925 (Bo~. VII of 1925), s. 54.

i \

' !

'

.. \

'

) The dispute between the appellant a co-operative bank -J

. and A who had taken loan and his surety was referred to . arbitration under s. 51 of the Bombay Co-operative Societies Act. The Board of Arbitrators consisted of three members; after -the Board has recorded some evidence, the nominee of the borrower retired. Thereafter, the Board was reconstituted. :_This Board also recordCd some evidence ;·but after some time, the newly appointed nominee of the borrower retired. There was a fresh constitution of the Board with the· other two .

members as before and a new member as th< nominee of the r

·

borrower. Further evidence was recorded by the Board thus constituted and finally the Board gave its award in the matter. Dissatisfied With this award A filed revision applications be~ . fore the Bombay Co-operative Tribunal.' Apart from certain objections on merit a preliminary objection was taken· as · regards ·the legality of the award on the ground that the Board as· last constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary ·objection and set aside the award and remanded the cases to the Assistant Registrar. Shortly after this A died but his heirs and legal representatives moved the Bombay High Court under Art. 227 of the Constitution against the Tribunal's decision. It set aside the orders pa>sed by the Tribunal and restored· the award made by the Board of Arbitrttors. The Bank came up in appeal by special leave to the Supreme.

· 1

-/"

Held, that. when the parties expre!Sly or impliedly agree that some evidence not taken before the Tribunal should be ~ treated as evidence and taken into consideration, it will not be wrong. or illegal for the Tribunal to act on such evidence not taken before it, the question of· mode of proof is a question. of procedure and is capable of being waived and therefore evidence taken in a previous judicial proc~Cding of a· civil te Ir•C• •<'mi!sible in a •ubs<<jUtnt proceeding nature can hr ·coment of farti~.

· ·

·

2 S.C.R.

SUPREME COURT REPORTS

While what is not relevent under the Evidence Act cannot in proceedings to· which Evidence Act applies, be made relevant by consent of parties, relevant evldence can be brought on the record for consideration of the Court or the Tribtinal without following .the regular mode, if parties agree.

11111

TIM Eal1a PU1J11'1 Co-opmditt, llw v. Du!hanblbi Aqual dminsalub P•til

.

When a party does not only raise no objection before a Court or Tribunal to proceed un the evidence already re corded before the previous Court or Tribunal and impliedly invites the Court . or Tribunal to act on such evidence pre viously recorded, he cannot be allowed later on to object to the Court or Tribunal having considered such evidence.

The High court having come to the conclusion that the Tribunal was wrong in allowing the preliminary objec tien raised before . it; the High Court was not entitled to ignore the fact that before the Tribunal other questions had been raised which had not been considered by it. The pro per order to pass in such · a case ordinarily would be to set aside the order of the Tribunal and direct it to decide 'the applications for revision on their merits.

CIVIL APPELLATE JURIBDIOTION: Civil Appeal

Nos. 555 & 556 of 1960.

Appeals by special leave from the judgment arid order dated July 17, 1956, of the Bombay Hillh Court in Special Civil Applications Nos. 580 and 581 of 1956.

A. V. Viswanatha Sastri, B. R. Nayak and

N aunit Lal, for appellants.

Abdurrahman Adam Omer, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the respon dents No. l and 3 to 6.

1962. April 23,-The Judgment of the Court

was delivered by

DAS GUPTA, ·J.-Disputes having arisen bet ween the appellant, a Co-operative Bank and one Amin Saheb Patil, who had taken loans from the -+ Bank and Kutubuddin Mohamad Ajim Kazi, who h11d stood E1uety in respect of tlie lollJJB they w,ere

Dtu G_,ra J.

'• •

116'

n, A°•!1- l'c.U'1 ~i .. 84n! Y, ~A sJ ~miasmhd if:u1

DuGqtoJ,

350

SUPREME COURT REPORTS [1963)

referred to arbitration in two references under s.54 of the Bombay Co-operative Societies Act, 1925. The Board of Arbitrators originally consisted of and Mr. Mr. L. V. Phadke, Mr. C. IC Phadke Trilokekar. After the Board had several meetings and recorded some evidence Mr. Trilokeker, who was the nominee of the borrower, Amin Saheb, retired. Thereafter the B0ard was re-constituted with Mr. Kotwal as the new nominee of the borrower. This Board also reoorded some evidence but after some time M.r. Kotwal also retired. There was a fresh two constitution of the Board with members as hefore and Mr. M. D. Thakur as the nominee of tho borrower. Further eviden~e was recorded by the Board thus constituted and finally the Board gave its award in the matters on March 14, 1955.

the otht>r

from

Dissatisfied with these awards Amin Saheb filed two revision applica.tions before the Bombay certain Co-operative Tribunal. Apart objections on the merits of the awards a preliminary objection was ta.ken before the Tribunal as regards the legality of the awards on the ground that the Boa.rd as Ia.st constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary objootion, St'lt aside the a.wards and remanded the cases to the Assistant Registrar for a; re-hearing.

Shortly after this· Amin Saheb died but his heirs and legal representatives made two appli oationn to the Bombay High Court under Art. 227 of the Constitution against the Tribunal's decision. The High Court hold that the Tribunal had erred thinking that the Board of Arbitrators had in l\,Oted iU~gally . in eeting on the evidence recorded by the previous Boards when this was done with the full knowledge of the parties and without any objection on either side. Accordingly, they set the orders ~ by the Tribunal and a.aide

.,.4

2 S.C.R.

SUPREME COURT REPORTS ___ 351 __ _

-

--- 1

!

restored the awards made by the Board . of Arbitrators.

The Bank has now appealed against the decision of the High Court after obtaining special · 1.iave from thifi Court.

·

·

-

1961

Th, Kal1an P,op/ ... Co--operativ1-Bank v. Dulhanbibi Aqual .Aminsaheb Patil

Daa Gupt4.J

'. "'

. .

Three points are raised before us in support of the appeal. The first is that the Tribunal had not made any error-in holcling that the Board had acted illegally in acting upon the evidence recorded by the previous Boards. Secondly, it is urged that even if the Board had erred it was not such an error as _would entitle tho High Court to interfere under Art. 227 of the Constitution. Lastly", it was contended that in any case, the High Co"urt was not ju~tified in setting aside the awards -when· the Tribunal had disposed of the application only_ on preliminary points and had not considered it on Iri our opinion there is no substance in merits. the first two contentions. As the High Court has pointed out normally it would have been wrong and indeed illegal -for the Tribunal to act on evidence not taken before it. The position is how the parties expressly-. or ever different when that some evidence -not taken impliedly agree before the Tribunal should be treated as evidence and taken into consideration. It is settled law that question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding can be made admissible in a subsequent - proceeding by con~ent of parties. This applies to proceedings of a civil nature. While what is not relevant under in proceedings to which Evidence Act applies, made relevant by consent of parties, relevant evidence can be brought on the record for consideration of Court or the Tribunal without following the regular mode, if Frties -~· The reason behind · thill rule if!

the Evidence Act cannot

1982

· TM Ka{•an P10p/l• Co-opn-ati ve Bani:: •• Dulhanbib; .Aqu•l .Aminaa/ub Patil

I

352 ~UPREME COURT REPOH.TS [1963)

that it would be unfair to ask any party to prove a particular fact when the other party has already admitted that the way it has been brought before the Court has sufficiently proved it. We are therefore of opinion that in the facts of these -cases when the ·appellant Bank not only raised no objection to the Board as last constituted proceeding on the evidence already recorded before the previous Boards, but indeed appears to have invited the Board to act on such evidence previously recorded, the "appellant cannot be allowed later on to object to the Board having considered the evidence-merely because the decision has goes against it. 'I he Tribunal was clearly wrong in thinking otherwise and _the error cannot but be considered to be an error apparent on the face of the record and as Pu ch the .High Court ; had not -onli the power -but duty to interfere with the Tribunal's order.

- _ -

- • -

allowing the _preliminary objection

It appears to us how-ever that having come to the conclusion - that the Tribunal was wrong raised in before it the High Court was not entitled to ignore the fact that before the. Tribunal other questions had been raised which had not been considered by it. The proper order to pass iri such a case, in our opinion, would be to set aside the order of the Tribunal and direct it to decide the applications for revision on their merits.

We therefore allow the appeals in part, and - order, in modification of. the order made ·by the High Court; that the Tribunars order _ remanding the cases tci the Assistant Registrar be set aside but the Tribunal should now proceed to hear the revi sion applications on their merits. In the circum· stances of the case, we order that the parties will ·bear their own costs.

Appeals allou·ed in :part.

' - -

- ... '-

i

•

' .

" I; -~I '