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Judgment
K. Sreedhar Rao, J.—All these three appeals pertain to the same subject matter. Two of these appeals are filed by the Siddeshwara Co-operative Bank Limited (for short ''Bank''), one appeal is filed by the purchaser of the property in the auction held by the Bank.
The material facts are as follows:
Respondent No. 1 in W.P. No. 1595-1596/2009 and Respondent in W.A. 1647/2009 are borrowers of housing loans from the Appellant - Cooperative Bank. The Respondent committed default. The bank invoked its power under of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ''Act 2002''). The mortgaged property was seized and sold in public auction for recovery of loan due.
The Appellant in W.A. No. 10191/2009 is the successful bidder and purchaser in the auction held by the bank. The borrower filed a writ petition challenging the right of the Bank for invoking the provision of the Act 2002 for recovery of loan.
It is the primary contention that the Bank cannot invoke the provisions of the Act 2002 for recovery of loans. It is further contended that the amounts paid by the borrower have not been properly accounted and no correct statement of account is given for payment of dues by the borrower.
The Learned Single Judge has held that the Bank cannot invoke the provisions of the Act 2002 for recovery of loan and thus allowed the writ petition.
The Learned Single Judge has placed reliance upon the decision of the Supreme Court in Greater Bombay Co-op. Bank Ltd. Vs. United Yarn Tex. Pvt. Ltd. and Others, and the decision of this Court in V. Krishnaswamy and Another Vs. The Karnataka Rajya Kaigarika Sahakara Bank Niyamitha and Another, The decision of this Court in V. Krishnaswamy case is based upon the decision of the Supreme Court in Greater Bombay Co-operative Bank Limited case.
The decision in the case of Greater Bombay Co-operative Bank Limited has no application to the facts on hand because the said decision is rendered in respect of the provisions contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (''Act 1993'' for short).
The Supreme Court in Greater Bombay Cooperative Bank Limited case has held that a ''Cooperative Bank'' would not come within the definition of the ''Bank'' u/s 2(d) of the ''Act 1993''. The present case is the one arising under the ''Act 2002''. The definition of ''Bank'' under the ''Act 1993'' and ''Act 2002'' are extracted herein:
Act 1993:
Section - 2(d) -
"bank" means -
(i) a banking company;
(ii) a corresponding new bank;
(iii) State Bank of India;
(iv) A subsidiary bank; or
(v) A Regional Rural bank;
Act 2002:
Section 2(c) - "bank means"
(i) a banking company; or
(ii) a corresponding new bank; or
(iii) the State Bank of India; or
(iv) a subsidiary bank; or
(v) such other bank which the Central Government may, by notification*, specify for the purposes of this Act;
The Central Government has specified "Co-operative Banks" as defined in Clause (cci) of Section 5 of the Banking Regulation Act, 1949 (10 of 1949) as "bank", vide S.O. 105(E), dated 28th January, 2003, published in the Gazette of India, Extra., Pt.II. Section 3(ii), dated 28th January, 2003.
The distinguishable feature of the definition of the ''Bank'' in Act 2002 and Act 1993 is very much evident. In Act 2002 Clause (2)(c)(v) declares that - "such other bank which the Central Government may, by notification, specify for the purposes of this Act; would be a within the definition". The Central Government has also issued requisite notification to cover the ''Cooperative Bank'' to be within the meaning of the ''Bank'' under the ''Act 2002'' whereas under ''Act 1993'' the said provisions are absent. In view of the definition of the Bank and the requisite notification issued by the Central Government, it cannot be argued that a ''Cooperative Bank'' is not a bank within the definition of the Bank under the ''Act 2002''. The ratio laid down by the Supreme Court in the case of Greater Bombay Cooperative Bank Limited has no application to the case on hand. In this circumstance, the writ appeal is allowed.