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Judgment
K.K. Sasidharan, J.—This Writ Petition is directed against the order dated 25 April 2008 on the file of the Deputy Registrar of Cooperative Societies, Namakkal, whereby and whereunder the Application filed by the Petitioner invoking Rule 128 of the Tamil Nadu Cooperative Society Rules, challenging the sale dated 18 March 2008 was rejected on the ground of delay.
Relevant Facts:
The Petitioner appears to have filed a Suit in O.S. No. 18/2007 against the First Respondent before the learned Subordinate Judge, Namakkal, claiming a sum of Rs. 1,75,000/- with interest. During the pendency of the said Suit, the Petitioner filed an Interlocutory Application in LA. No. 75 of 2007 praying for an order of attachment before judgment. The learned Judge as per order dated 18 January 2007 directed the First Respondent to furnish security for the Suit claim on or before 1 February 2007. Since no such security was given, the Sub-Court was pleased to pass an order of attachment on 1 February 2007. The attachment was registered on the file of the local Sub-Registrar''s Office.
In the meantime, the Fourth Respondent obtained a decree against Respondents 1 and 2 in A.R.C. No. 823/2005-06. The decree granted on 20 February 2006 was for payment of a sum of Rs. 4,32,728/-. This was followed by proceedings for execution. The Fifth Respondent brought the property for sale on 18 March 2008. The Third Respondent took part in the said auction and the bid was confirmed in his name for a sum of Rs. 8,50,000/-. The Petitioner immediately filed a Suit in O.S. No. 228/2008 before the learned District Munsif, Namakkal, praying for a decree of declaration that the sale was invalid.
Since the Petitioner alleged irregularity in the matter of sale, he filed a Petition before the Fifth Respondent under Rule 128 of the Tamil Nadu Cooperative Societies Rules, 1988, to set aside the sale. The said Application was rejected of the ground of delay. Being aggrieved by the said order, the Petitioner is before this Court.
I have heard the learned Counsel for the parties.
The Core Issue:
The only issue which arises for consideration in this Writ Petition is as to whether the Fifth Respondent was justified in rejecting the Application on the ground of delay.
The Statutory Scheme:
Since the resolution of the dispute raised in this Writ Petition relates to the interpretation of Rule 128 of the Tamil Nadu Cooperative Societies Rules, the said Rule is extracted below:
Application to set aside sale on ground of irregularity or fraud .-- (1) At any time within thirty days from the date of sale of immovable property, the decree holder or any person entitled to share in a rateable distribution of the assets or whose interests are affected by the sale, may apply to the Registrar to set aside the sale, on the ground of a material irregularity or mistake or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground aforesaid unless the said Registrar is, satisfied that the Applicant has sustained substantial inquiry by reason of such irregularity or mistake or fraud.
(2) If the Application be allowed, the said Registrar shall set aside the sale and may direct a fresh one.
This provision requires an Application to be made before the Registrar within thirty days from the date of sale of immovable property. Therefore, the word "within thirty days from the date of sale", assumes significance.
The question is whether the date of sale should be excluded for the purpose of computing thirty days period.
The statutory Rule enacted as per Section 10 of the General Clauses Act indicates that in counting a particular period specified by law, the first day is to be excluded.
The Authorities:
In N.M. Hussain & Co., by Janab S.D. Ranguwalla v. State AIR 1953 Mad. 602, a learned Judge of this Court considered the expression "within a week" as indicated in Section 3 of the Madras Act 25/1949. The said provision contains an option to the Accommodation Controller on receiving a notice from the owner of the house of a vacancy to communicate to him within a week, a reply whether he intended to allot the house to a tenant or whether he is not going to exercise the option but allow the owner himself to occupy it. Chief Presidency Magistrate took the view that the date of giving option has to be excluded. While agreeing with the said view, a learned Judge of this Court observed thus:
The position taken by the Chief Presidency Magistrate is both in accordance with common sense, the spirit of the Act, as well as the authorities on the subject. Common sense requires that "within a week" should mean the exclusion of the date of the occurrence as otherwise we would be taking into consideration fractions of a day and calculate practically from the previous day. Then the spirit of this provision is that the Accommodation Controller must have a clear week for making up his mind whether he should allot the house to a tenant or he should not exercise his option. This period has now been increased to ten days. Then we have the extract from V.N. Mitra''s "Limitation and Prescription " and the decision in - Lester v. Garland (1808) 15 Ves Jun 248(A), cited by the lower Court which make it clear that in computing the period of within one week we must exclude the date of occurrence. There is also another reported case, -Williams v. Burgess (1841) LJ 10 (B) where the term "within 21 days" and the word "of have been similarly construed and this decision followed - (1808) 15 Ves Jun 248(A). Therefore the construction placed by the Chief Presidency Magistrate is correct and on that the conviction which followed is also correct.
Similar question arose before a Division Bench of Rajasthan High Court in Sureshchandra and Others Vs. Birdichand and Others, . The Division Bench after extensively quoting from the Halsbury''s Laws of England and Maxwell on Interpretation of Statutes, held thus:
It will be thus seen from the above passages that there are two distinct categories of cases. In one category fall the cases where an act has to be done on or after the expiration of particular prescribed period and the other category comprises of cases where a thing is permitted to be done within a stated period. It has been held that where an act could be done only after the expiry of a stated period both the terminal days of the period are to be excluded. But in the second category of cases while the first terminal day is excluded the last day of the prescribed period is to be included and it is permissible to do the act only before the last day expires.
Analysis:
The sale in question was conducted at 3.30 p.m. on 18 March 2008. In case the period of thirty days is computed from 18 March 2008, in effect, it would be less than thirty days. Therefore, necessarily, date of sale has to be excluded.
The learned Counsel for the Namakkal Cooperative Urban Bank Ltd., contended that thirty days expired on 17 April 2008, in case the date of sale is excluded. However, the Application was received only on 21 April 2008. Therefore, it was beyond the statutory period.
The technical objection raised by the learned Counsel has no factual foundation.
The Petitioner in his Affidavit filed in support of the Writ Petition has very clearly stated that he approached the office of the Fifth Respondent on 17 April 2008 and attempted to submit the Application in person. However, none of the employees were prepared to receive the same under pretext that the Deputy Registrar was on camp at a different place. Immediately, the Application was sent by local speed post. The said averment has not been denied by the Fifth Respondent by filing counter. Even otherwise, the communication received by the Petitioner from the postal Department clearly shows that the postman attempted delivery on 17 April 2008. Though the postman approached the office of Fifth Respondent on two occasions at 1515 hours and 1600 hours on 17 April 2008, he was not in a position to deliver the article as the office staff did not take delivery as the Deputy Registrar was on camp elsewhere. The communication of the Postal Department reads thus:
Department of Posts - India Namakkal Division Tel 954286-220953 Complaint - Settled Reply No. 637000-02247 02.05.2008
To
Shri. K. Kolandan, S/o Karuppa Gounder, 49, CRP Pudurkuttai St., Namakkal-637 001.
Dear Sir/Madam,
In continuation of our letter dated the Complaint No. 637000-02247, it is to inform you that the complaint of non-delivery of article of Speed Post Letters with transaction No. ET463812749IN on 17.04.2008 of Namakkal ho is settled on 02.05.2008 with the following information that "Delivered on 21.04.2008". The Speed article was tried for delivery two times to the addressee at 1515 hours and 1600 hours on 17.04.2008. But the article could not be delivered as the office staff did not take delivery on the plea that Deputy Registrar was on camp on 17.04.2008. Hence, it was sent to Ganesapuram on 17.04.2008 and delivered through postman on 21.04.2008.
Thanking you,
Yours faithfully, SUPDT. OF POST OFFICES NAMAKKAL
Section 27 of the General Clauses Act, 1897 deals with service by post. The said provision reads thus:
Meaning of service by post.-- Where any [Central Act] or Regulations made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The Application under Rule 128 was sent to the Fifth Respondent on 17 April 2008. It was attempted to be delivered to the office of the Fifth Respondent on the very same day. However, the officials refused to receive the same on lame excuse that the Deputy Registrar was elsewhere. Therefore, the Application is deemed to have been given on 17 April 2008.
The Fifth Respondent has not indicated anything about the non receipt of the Application on 17 April 2008. The statutory Application was rejected only on the ground that it was made beyond thirty days. The background facts clearly indicate that the Application was made within time. Refusal on the part of the office of the Fifth Respondent to receive the Application on 17 April 2008 cannot be used against the Petitioner to reject his Application. Therefore, I am of the view that the Fifth Respondent was not justified in rejecting the Application on the ground of delay.
Disposition:
Accordingly, the order dated 25 April 2008 on the file of the Deputy Registrar of Co-operative Societies, Namakkal is set aside. The Fifth Respondent is directed to entertain the Application filed by the Petitioner under Rule 128 of the Tamil Nadu Co-operative Societies Rules and dispose of the same on merits and as per law, as expeditiously as possible and in any case, within a period of twelve weeks from the date of receipt of copy of this order.
In the upshot, I allow the Writ Petition. No costs. Consequently, connected M.P. is closed.