015-NLR-NLR-V-79-2-THAMBIAH-SEEVARATNAM-and-TWO-OTHERS-Appellants-and-THE-ASSISTANT-COMMISSI.pdf
104
Seevaratnam v. Asst. Commissioner of Cooperative Development
1978Present: Wceraratnc, J. and Ratwatte, J.
THAMBIAH SEEVARATNAM and TWO OTHERS, Appellants
and
THE ASSISTANT COMMISSIONER OF CO-OPERATIVEDEVELOPMENT, JAFFNA, Respondent
S.C. 600—602176—M.C. Jaffna
Co-operative Societies Law, No. 5 of 1072, sections 59 and 70(3)—En-forcement. of award made under provisions of Co-operativeSocieties Ordinance (Cap. 124)—Does section 70 (3) of Law, No. 5of 1972 apply to awards made under earlier Law-Jurisdiction ofMagistrate to enforce such award—Interpretation Ordinance(Cap. 2), section 6 (3) (c).
An award made on 16th December, 1971, under the Co-operativeSocieties Ordinance (Cap. 124) as amended was sought to beenforced under the provisions of section 59 of the Co-operative-Societies Law, No. 5 of 1972. It was submitted that the Magistrate’sCourt had no jurisdiction to entertain the application, to enforcethis award and that the provisions of section 70(3) of Law No. 5of 1972 did not apply to “ awards ” made under the earlier Law.Reliance was also placed on section 6 (3) (c) of the InterpretationOrdinance.
Held : That an award made under the Co-operative Societies Ordi-nance as amended can be enforced under section 59 of the Co-opera-tive Societies Law, No. 5 of 1972. Section 70(3) of the new Lawapplies to such awards. Section 6(3) of the Interpretation Ordinancehas no application in such a case and the Magistrate has jurisdictionto entertain such applications.
Case referred to:
Kesavan Nambi v. Asst. Commissioner of Co-operative Develop-ment. S.C. Application No. 374/76—M.C. Point Pedro 13138 S.C.Mt’s 24.9.76.
^^PPEAL from an order of the Magistrate’s Court, Jaffna.
P.Somatilakam, for the appellants.
Rohan Jayatilleke, State Counsel, for the respondent.
Cur. adv. vulti.
-1RATWATTE, J.—Seevaralna.-nv.Azsi. Q ym-miseioner of Co-operative Development 105
April 3, 1978. Ratwacts, J.
The Assistant Commissioner of Co-operative Development,-Jaffna,.by filing a Certificate of Award in terms of section•59 (1) (c) and section 59 (4) cf the Co-operative Societies Law,No. 5 of 1972, read with section. 79 (3) of the said Law, instituted.proceedings in the Magistrate's Court of Jaffna for the recoveryof a sum of Rs. 1,400 together with Rs. 150 being costs andinterest at 6% on the principal sum of Rs. 1,250 from 17.12.1971-to 17.06.1973 (Rs. 112.50) and further interest at 9% per annumuntil the date of realisation. The certificate further stated thatthe said sum was due to be paid jointly and severally by sevendefaulters who were named in the certificate. The amount dueindividually from each defaulter was stated against the name■of each of them. The Magistrate issued summons on the defaul-ters. Four of the defaulters appeared and stated that they wereliable. Thereupon the Magistrate ordered each of them to pay
he respective amount due from him. Three of the defaulters whoare the appellants in this appeal stated that they had caus§ toshow why further proceedings for the recovery of the amount.should not be taken against them.
At the inquiry, Counsel appearing for the appellants made•certain submissions. Thereafter written submissions were filedon behalf of the appellants and the respondent. It was submittedon behalf of the appellants that the application to enforce theaward was made on 18.07.1S73 in terms of section 59 of theCo-operative Societies Law, No. 5 of 1972, which came into forcefrom 11.10.1972. The award itself, which was sought to be en-forced was made on 16.12.1971. Section 59 states that a decisionor award which is sought to be enforced under that section isa decision or award made under section 58 of the Law. Theaward sought to be enforced in this case was an award madeunder the Co-operative Societies Ordinance (Chapter 124) asamended from time to time. The Co-operative Societies■Ordinance was repealed by the Co-operative Societies Law,No. 5 of 1972. It was therefore submitted that this award was notmade under section 58 of the new Law and it is not saved bysection 70 (3) The learned Magistrate in his Order stated thatsection 59 (6) of the new Law precluded him “ absolutely from•entering into any controversy in regard to any statement madein the certificate filed He took the view that the prohibition•contained in section 59 (6) did not authorise him to examineor decide the correctness cf the statement in the certificatewhich says that “ the recovery of the amount due and its trans-mission to me are sought under section-59 (4) and section 59 (7)•of the above Law ”. He therefore held that he had power only
1P3 RATWATTE, J.—Sccvaralnamv. Aset. Commissioner of Co-operativeDevelopm ant
to recover the money as a liability due and not decide thecorrectness of the statement that this Award or decision is en-forceable. He therefore ordered that the amount be recoveredfrom the appellants as a fine. The appellants appealed against thisOrder.
Learned counsel for the appellants urged before us that theaward in this case which was made on 16.12.1971 was made underthe Co-operative Societies Ordinance (Chapter 124) as amendedby the Co-perative Societies (Amendment) Act, No. 27 of 1964.The application to enforce this award was made on 18.07.1973under section 59 of the Co-operative Societies Law, No. 5 of 1972.He submitted that as section 59 specifically refers only to a deci-sion or an award made under section 58 of the same Law, theMagistrate’s Court had no jurisdiction to entertain the applica-tion to enforce this award. He contended that the award is notsaved by the provision of section 70 (3) of the new Law as“ Awards ” have not been included in section 70 (3). He furthercontended that awards made under the old Law were not preserv-ed, because of the provisions of section 6 (3) (c) of the Interpre-tation Ordinance (Chapter 2). He therefore submitted that theaward of 16.12.1971 could have been enforced in terms of Chapter124 as amended by Act No. 27 of 1964 by virtue of section.6 (3) (c) of the Interpretation Ordinance.
Section 70(3) of the Co-operative Societies Law reads asfollows:—,
“ All appointments and orders made, notifications andnotices issued, and suits and other proceedings institutedor deemed to have been made, issued or instituted and alldisputes that have arisen under any enactment repealed bythis Law, shall, so far as may be, be deemed to have beenrespectively made, issued and instituted and to have arisenunder this Law ”.
Learned counsel for the appellants submitted that an awardis not an “ order ” and further that when this section providedfor determining suits and proceedings instituted under the oldLaw as suits and proceedings under the new Law the legislaturewas contemplating suits and proceedings pending and not suitsand proceedings that were terminated by the making of anaward ; and similarly that when the section referred to“ disputes ”, it contemplated pending disputes. It was contendedthat if the legislature intended to make express provision forawards it would have made express provision for it in thesection, just as it has made express provision for orders,notices, etc.
RATWATTE, J.—Se&varalnamv. Asst. Commissioner of Co-operative Development 107
This same point had been raised recently in the case ofKesavan Nambi v. Assistant Commissioner of Co-operativeDevelopment, Jaffna and another-—S. C. Application No. 374/75—Application for Revision in M. C. Point Pedro CassNo. 13138 : S. C. Minutes of 24.0S.197S. In that case too anapplication was filed under section 39 (1) (c) and section 59 (4)of the Co-operative Societies Law to enforce an award made in1966 under the old Law. In dealing with this point, Rajaratnazn,
J.stated as follows : —
“We are inclined to give a liberal interpretation to s.70 (3)which in our view is an ail embracing section to keep aliveand continue all that had been done or ordered under theold Law and preserving all the rights and liabilities of therespective societies. We also hold the view that our inter-pretation must follow the rule “ ut res magis valeai quampereat We are not impressed by the submission that theaward made is not an order in as much as a decision of theRegistrar either in the first instance or in Appeal. Section70 (3) keeps alive all appointments and all orders made ordeemed to have been made. It keeps alive all notificationsand notices issued or deemed to have been issued. It keepsalive all suits and other proceedings instituted or deemedto have been instituted. It keeps alive all disputes that havearisen. It states all these appointments, orders, notices, noti-fications, proceedings, suits or disputes in existence underany repealed law shall, so far as possible may be, be deemedto have been respectively made under the Law No. 5 ol1972. Moreover an ‘ order ’ as defined in the Shorter OxfordDictionary (3rd Ed.) includes the meaning “ an authorita-tive direction or a decision of a Judge.” An award of anArbitrator under the Act cannot be said not to have thatmeaning.
It is our view, that all awards made before the cominginto force of the said Lav/ under the relevant repealed Actshall so far as may be, be deemed to have been made underthe new Law. Moreover the dispute which was referred tothe Arbitrator and the proceedings before the Arbitrator aswell will be deemed to have arisen and instituted under thenew Law. The Legislature by the new Law caused theCo-operatives and the Department to lose nothing and shednothing but everything so to say was clothed anew by theAct No. 5 of 1972.”
liamachcmdran v. Subramaniam
103
Rajaratnam, J. finally held that section 70 (3) : —
“ after the Law No. 5 of 1972 came into operation, broughtall the sections in the new Law into play and when theawards made under the repealed laws came to be enforcedthe provisions of the new Law applied.”
I respectfully agree with his judgment. Learned counsel forthe appellants submitted that Rajaratnam, J. has not consideredthe provisions of section 6 (3) (c) of the InterpretationOrdinance and he invited us to consider Rajaratnam, J.’sjudgment in that light. As stated earlier I agree with Rajaratnam,J. that an award comes within the meaning of the term * Order ’in section 70 (3) of the new Law and I am therefore of theview that specific provision has been made in the new Lawregarding the enforcement of awards made under the old Law ;that being so, section 6 (3) (c) of the Interpretation Ordinancewill not apply as that section would apply only in cases wherethere is no specific provision made in the repealing Act.
For these reasons I hold that the Magistrate’s Court hadjurisdiction to entertain this application. I would thereforeaffirm the order of the learned Magistrate directing that theamounts due from the appellants be recovered as a fine anddismiss the Appeal. I make no order as to costs.
Weeraratne, J.—I agree.
Appeals dismissed.