State Co-Operative Marketing Union Ltd. Vs. Uma Shankar Sharan & ANR 
INSC 193 (18 August 1992)
L.M. (J) SHARMA, L.M. (J) ANAND, A.S. (J)
CITATION: 1993 AIR 1222 1992 SCR (3)
892 1992 SCC (4) 196 JT 1992 (4) 590 1992 SCALE (2)209
Bihar and Orissa cooperative societies
Act, 1935- sections 40 and 48-Whether remedy under a specific provision
excludes remedy under a general provision-held, where two remedies are
available, both continue till the election of one of them, and action commenced
accordingly-Section 40 does not therefore exclude section 48-Plurality of
Remedies- Principle of election.
the tenure of respondent 1 as Depot Manager of the Bihar State Cooperative
marketing Union Ltd., a shortage of coal was detected. The
appellant-Cooperative Union made a claim for the loss, and a
reference was made to the Assistant Registrar, cooperative societies under
section 48 of the Bihar and Orissa Cooperative Societies
48(1)(c) deals with disputes between the Society. and a
past or present officer or agent of the Society.
40 provides for investigation by the Registrar where upon an audit or enquiry
such officer has been found guilty of misappropriation or similar acts. The
Assistant Registrar in an enquiry under Section 48 absolved respondent 1. This
was reversed by the Joint Registrar and an award made accordingly. The Patna
High Court in a writ application under Article 226 by respondent 1 held that
since the matter was covered by Section 40, Section 48 could not apply and set
aside the award. The High Court relied on the maxim generalia specialibus non derogant.
The claim under section 40 was rejected on the ground of limitation under
second proviso to Section 40 which prescribe a period of six years.
the appeal, this Court,
1. Validity of plural remedies, if available under the law, cannot be doubted.
Even if the two remedies are inconsistent, they continue for the person
concerned to choose from, until he elects one of them, commencing an action
accordingly. A matter which may attract Section 40 will continue to be governed
by Section 48 also if the necessary conditions 893 are fulfilled. In the
present case no steps under Section 40 were ever taken by the appellant. The provisions
of Section 48 are available to the appellant for the recovery of the loss.
[896C-D] Prem Jeet Kumar v. Surender Gandotra & Ors.,  Supp. 2 SCC
215 and Pentakota Srirakulu v. Co-operative Marketing Society Ltd.,  1
SCR 186, followed.
claim of the appellant against respondent 1 is clearly covered by Section 48(1)(c)
and therefore was validly referred to the Registrar under Section 48. [895G]
six year rule of limitation in Proviso under Section 40(1) is limited for the
purpose of Section 40, and cannot govern a reference under Section 48. Even
otherwise, on facts the claim is not barred by limitation. [897B] Purnea
Ministerial Government Officers' Co-operative Society Ltd. v. Abdul Quddus,
(1969) 11 BLJR 969, distinguished.
remitted to the High Court for decision on the remaining issues. [897F]
APPELLATE JURISDICTION: Civil Appeal No. 3047 of 1992.
the Judgement and Order dated 30.7.1984 of the Patna High Court in Civil Writ
Jurisdiction Case No. 373 of 1977.
and S.K. Sinha for the Appellant. A.K. Srivastava for the Respondents.
of the Court was delivered by SHARMA, J. The question arising in this case is
whether a matter, if it comes within the scope of section 40 of the Bihar and Orissa Co-operative Societies Act, 1935
(hereinafter referred to as the Act) has to be excluded from the purview of
Section 48 of the Act.
Special leave is granted..
facts relevant for the decision of this appeal are in a short 894 compass. The
respondent No.1 was Depot Manager under the appellant Marketing Union Limited
and during his tenure as such, a shortage of coal was detected. A claim was
accordingly made for the said loss by the appellant and a reference was made to
the Assistant Registrar, Co-operative Societies respondent No.3, under Section
48 of the Act. The Assistant Registrar absolved the respondent No.1 from the
alleged liability and an appeal was filed by the appellant under Section 48(6)
of the Act before the Joint Registrar, Co-operative Societies, respondent No.2,
who are accepted the appellant's case, rejected the defence and made an award
accordingly. This was challenged before the Patna High Court by a writ
application under Article 226 of the Constitution of India. The High Court held
that since the matter was covered by the provisions of Section 40, Section 48
could not apply. Consequently the award was held to be illegal. So far section
40 was concerned, it was pointed out that the claim had to be rejected on the
ground of limitation. Thus without considering the other questions raised by
the parties, the High Court allowed the writ petition by the impugned judgement
which is under challenge in the present appeal.
has been contended on behalf of the appellant that the provisions of Section 48
are wide enough to embrace the dispute which has been the subject matter of the
present case and they cannot be given a narrow interpretation so as to exclude
their application to cases which may also be covered by Section 40. In reply
reliance has been placed on behalf of the respondent No.1 on the decision in Purnea
Ministerial Government Officer's Co-operative Society Ltd.v. Abdul Quddus,
(1969) B.L.J.R. Vol. 11 969 which has found favour with the High Court.
Section 40 pertaining to surcharge, provides that if as a result of an audit or
inquiry it appears to the Registrar that any person who has taken part in the organisation
or management of the society or any past or present officer of the society has
either made a payment contrary to law or has been guilty of misappropriation or
of having committed similar acts detailed therein, the Registrar may inquire
into the matter and make an order requiring him to contribute an appropriate
sum by way of compensation to the assets of the society. The second Proviso to
sub-section (1) of the said section says that no such order shall be passed in
respect of any act or ommission which had occurred more than six years earlier.
provisions of sub-section (1) of Section 48 (omitting the explanations which
are not relevant for the present issue) dealing with Disputes are in the 895
If any dispute touching the business of a registered society (other than a
dispute regarding disciplinary action taken by the society or its managing
committee against a paid servant of the society) arises- (a) amongst members,
past members, persons claiming through members, past members or deceased
members, and sureties of members, past members or deceased members, whether
such sureties are members or non-members; or (b) between a member, past member,
persons claiming through a member, past member or deceased member, or sureties
of members, past members or deceased members, whether such sureties are members
or non- members and the society, its managing committee or any officer, agent
or servant of the society; or (c) between the society or its managing committee
and any past or present officer, agent or servant of the society; or (d)
between the society and any other registered society; or (e) between a
financing bank authorised under the provisions of sub-section (1) of Sec. 16
and a person who is not a member of a registered society;
dispute shall be referred to the Registrar:
that no claim against a past member or the estate of a deceased member shall be
treated as a dispute if the liability of the past member or of the estate of
the deceased member has been extinguished by virtue of Sec. 32 or Sec.
claim of the appellant against the respondent No.1 is clearly covered by clause
(c) of sub-section (1) above and, therefore, could have been validly referred
to the Registrar under Section 48. The argument, however, is that since the
matter is covered by Section 40, Section 48 should be held to be inapplicable.
The High Court agreed and made the following observations:- 896 "It is
well-known proposition of law that when a matter falls under any specific
provision then if must be governed by that provision and not by general
provisions (Generalia specialibus non- derogant)".
High Court has in its judgement assumed that whenever a specific remedy is made
available in law the other remedy, more general in nature, necessarily gets
Validity of plural remedies, if available under the law, cannot be doubted. If
any standard book on the subject is examined, it will be found that the debate
is directed to the application of the principle of election, where two or more
remedies are available to a person. Even if the two remedies happen to be inconsistent,they
continue for the person concerned to choose from, until he elects one of them,
commencing an action accordingly. In the present case there is no such problem
as no steps under Section 40 were ever taken by the appellant. The provisions
of Section 48 must, therefore, be held to be available to the appellant for
recovery of the loss.
view that a matter which may attract Section 40 of the Act will continue to be
governed by Section 48 also if the necessary conditions are fulfilled, is
consistent with the decision of this Court in Prem Jeet Kumar V. Surender Gandotra
and others,  Supp. 2 S.C.C. 215, arising under the Delhi Co-operative
Societies Act, 1972.
two Acts are similar and Sections 40 and 48 of the Bihar Act and Sections 59
and 60 of the Delhi Act are in pari materia. The reported judgement followed an
earlier decision of this Court in Pentakota Srirakulu v. Co- operative
Marketing Society Ltd.,  1 S.C.R. 186. We accordingly hold that the High
Court was in error in assuming that the application of provisions of Section 48
of the Bihar Act could not be applied to the present case for the reason that
Section 40 was attracted.
far the question of limitation is concerned it is true that as in the Delhi
Act, a period of six years was fixed under the Bihar Act also by second Proviso
under Section 40 (1), which reads thus:- "Provided further that no order
shall be passed under this sub-section in respect of any act or omission
mentioned in clauses (a), (b), (c) or (d) except within six years of the date
on which such act or omission 897 occurred." It will be observed that the
six years rule of limitation, however, is limited for the purpose of section
40, and cannot govern the reference under section 48. The relevant provision of
section 48 is to be found in the Proviso to section 48(1) which has been quoted
above. For determining its impact on the present case it is necessary to
examine the Proviso closely. Firstly, both the Proviso and section 63 of the
Act are concerned only where the claim is against a member. Even if the Proviso
be assumed to govern a dispute between the society and its past or present
officer or servant it cannot come to the aid of the present respondent No.1
because he was dismissed from service on 15.10.1966 and he was directed to
deposit the disputed amount within 30 days therefrom. The dispute was referred
for adjudication under section 48 on 12.12.1966 and the reference was
registered as Award Case No. 25 of 1968 on 03.08.1968. Thus all these steps
were taken within a period of two years. No reliance, therefore, can be placed
on either section 32 or 63. The case of Putnea Ministerial government Officers'
Co-operative Society Ltd. (Supra) is clearly distinguishable. The respondent
there was a member of the Society in question and had taken a loan which was
the subject matter of the dispute. As was pointed out by the High Court the
claim had stood barred by limitation and, therefore, it was held that the
reference was incompetent in view of the Proviso to section 48(1). The High
Court in the present case was, in the circumstances, not entitled to rely on
this decision and its conclusions must be set aside as being erroneous in law.
However, since in the judgement it is stated that several other questions were
also raised on behalf of the respondent No.1 (who was the writ petitioner)
which remained undecided, the case requires reconsideration by the High Court
on the remaining points. Accordingly the impugned judgement is set aside and
the writ petition is remitted to the High Court for fresh decision in
accordance with the observations in the present judgement. The appeal is
allowed but in the circumstances without costs.