# THE KALYAN PEOPLE'S CO·OPERATIVE BANK v. DULHANBIBI, AQUAL AMINSAHEB· PATIL

- **Citation:** [1963] 2 S.C.R. 348
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** J. L. Kutra, K. C. DAS GuPrA, Raghubar Da~Al
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-kalyan-people-s-co-operative-bank-v-dulhanbibi-aqual-aminsaheb-patil-2491
- **Pages:** 5

## Headnote

Co-operative Society-Arbitration:_Tribunal, if and whe1'
can act. on· evidence taken befOTe previous Tribunal-Party conaenting to· such\evidence-if can object later-Bombay Co-oper.
ative Societies Act, 1925 (Bo~. VII of 1925), s. 54.
·
'~,
)
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 · 1
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.
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
nature can te Ir•C• •<'mi!sible in a •ubs<<jUtnt proceeding
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.
When a party does not only raise no objection before
a Court or Tribunal to proceed un the evidence already recorded before the previous Court or Tribunal and impliedly
invites the Court . or Tribunal to act on such evidence previously 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 objectien 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 proper 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 respondents No. l and 3 to 6.
1962. April 23,-The Judgment of the Court
was delivered by
DAS GUPTA, ·J.-Disputes having arisen between the appellant, a Co-operative Bank and one
Amin Saheb Patil, who had taken loans from the
-+
Bank and Kutubuddin Mo

## Text

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348 · SUPREME COURT R_~PORT~ [1963]
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 conaenting to· such\evidence-if can object later-Bombay Co-oper.
ative Societies Act, 1925 (Bo~. VII of 1925), s. 54.
·
'~,
)
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 · 1
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.
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
nature can te Ir•C• •<'mi!sible in a •ubs<<jUtnt proceeding
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.
When a party does not only raise no objection before
a Court or Tribunal to proceed un the evidence already recorded before the previous Court or Tribunal and impliedly
invites the Court . or Tribunal to act on such evidence previously 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 objectien 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 proper 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 respondents No. l and 3 to 6.
1962. April 23,-The Judgment of the Court
was delivered by
DAS GUPTA, ·J.-Disputes having arisen between 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
'• •
11111
TIM Eal1a PU1J11'1
Co-opmditt, llw
v.
.
Du!hanblbi Aqual
dminsalub P•til
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
Mr. L. V. Phadke, Mr. C. IC Phadke
and Mr.
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 sometime M.r. Kotwal also retired.
There was a fresh
constitution of the Board with the otht>r two
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.
Dissatisfied with these awards Amin Saheb
filed two revision applica.tions before the Bombay
Co-operative
Tribunal.
Apart
from
certain
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 applioationn 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
in thinking that the Board of Arbitrators had
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
a.aide the orders ~
by the Tribunal and
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2 S.C.R.
SUPREME COURT REPORTS ___ 351 __ _
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.
· ·
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·
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
merits. Iri our opinion there is no substance in
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 however different when the parties expressly-. or
impliedly agree that some evidence -not taken
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 the Evidence Act cannot 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!
1961
Th, Kal1an P,op/ ...
Co--operativ1-Bank
v.
Dulhanbibi Aqual
.Aminsaheb Patil
Daa Gupt4.J
1
1982
· TM Ka{•an P10p/l•
Co-opn-ati ve Bani::
••
Dulhanbib; .Aqu•l
.Aminaa/ub Patil
I
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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.
-
_ -
- • -
It appears to us how-ever that having come
to the conclusion -that the Tribunal was wrong
in
allowing the _preliminary objection 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 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 revision 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.
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