Oral Judgment:

R.M. Lodha, J.

1. The important yet interesting question pertaining to legislation by incorporation has been raised in this writ petition. The question is: whether in section 2(e) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, "Act of 1993") which says that "Banking Company" shall have the meaning assigned to it in clause (c) of section 5 of Banking Regulation Act, 1949, the Co-operative Bank is included by virtue of section 56(a)(i) of Banking Regulation Act which provides that unless context otherwise requires, reference to "Banking Company" shall be construed as reference to "Co-operative Bank".

2. The aforesaid question arises in the facts and circumstances which we very briefly narrate hereinafter. The Shamrao Vithal Co-operative Bank Ltd., a Scheduled Multi-State Co-operative Bank is the 1st petitioner in the writ petition. M/s Star Glass Works - respondent No.1 is a partnership firm registered under the Partnership Act, 1932 carrying on the business of manufacturing of Glass Containers for cosmetics, foods, beverages and pharmaceutical industries. Respondent Nos. 2 and 3 are the partners of the 1st respondent partnership firm. The 1st respondent firm is said to have availed loan facility from the 1st petitioner - bank. The loan of Rs.32,00,000/- was sanctioned to the 1st respondent by the 1st petitioner - bank on the terms and conditions incorporated in Term Loan Agreement dated 17th January 1998. The 1st respondent as well as its partners are alleged to have failed to pay the instalments under the agreement and according to the petitioners in the month of April 2001 a sum exceeding Rs. 29 lakhs was outstanding which remained to be paid by the respondents. The petitioners herein filed an application being Original Application No. 568 of 2001 before the Debt Recovery Tribunal III at Mumbai for recovery of the outstanding amount from the respondents. The Presiding Officer, Debt Recovery Tribunal III by its order dated 29th November 2001 held that the Debts Recovery Tribunal has no subjectwise jurisdiction over the matter as the 1st petitioner-bank is a Co-operative Bank and not a Company under the Companies Act, 1956. Aggrieved thereby the petitioners preferred the appeal before the Debt Recovery Appellate Tribunal. The said appeal was dismissed on 16th January 2002. The orders dated 29th November 2001 and 16th January 2002 passed by Debt Recovery Tribunal and Appellate Tribunal respectively are under challenge in this writ petition.

3. Mr. Virendra Tulzapurkar, learned senior counsel appearing for the petitioners submitted that under section 2(e) ofof 1993 "banking company" is defined as having the meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act, 1949 and as such under the of 1993 as an effect of such incorporation the meaning given to the "banking company" in the Banking Regulation Act has to be given. The submission is that the wordings in the incorporating statute viz. Act of 1993 are not "banking company" as defined in the Banking Regulation Act but wordings are "banking company shall have the meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act", and therefore, the other provisions in the Banking Regulation Act have to be seen to determine the meaning of expression "banking company". Learned senior counsel would submit that section 56(a) of the Banking Regulation Act has enlarged the meaning of "banking company" so as to include, inter-alia, a Co-operative Bank. According to him the effect of such incorporation is to write section 5(c) and 56(a) of the Banking Regulation Act into section 2(e) ofof 1993 and it would appear therefrom that "banking company" means any company which transacts business of banking in India including Co-operative Bank. The learned senior counsel also submitted that considered that way and the purposive interpretation, the Co-operative Banks are covered by the definition of "banking company" in the of 1993. In support of his submissions the learned senior counsel placed reliance on (i) U.P. Avas Evam Vikas Parishad vs. Jainul Islam and anr., (1998) 2 SCC 467 [LQ/SC/1998/86] , (ii) Ichchapur Ind. Co-operative Society vs. Competent Authority, (1997) 2 SCC 42 [LQ/SC/1996/2242] , (iii) Surana Steel vs. Dy. Commissioner of Income Tax, (1999) 4 SCC 313, (iv) M/s Onkarlal Nandlal vs. State of Rajasthan and anr., (1985) 4 SCC 404 [LQ/SC/1985/296] , (v) Reserve Bank of India vs. Peerless General Finance, (1997) 1 SCC 424, (vi) The Mayor, Aldermen and Burgesses of the Borough of Portsmouth and Charles Bovill Smith and others, judgment of House of Lords reported in H. L (E) (Vol. X) 1885 and (vii) Co-operative Bank Employees Union vs. Saraswat Co-operative Bank Ltd. and others, 1983(47) F.L.R. 348. The learned senior counsel, thus, submitted that Debt Recovery Tribunal was not justified in holding that it has no subjectwise jurisdiction in respect of the 1st petitioner-Bank being Co-operative Bank.

4. Mr. P.K. Samdani, learned counsel appearing for the respondents, on the other hand, justified the orders passed by Debt Recovery Tribunal and Debt Recovery Appellate Tribunal. He contended emphatically that definition of "bank" under section 2(d) of theof 1993 is restricted and confined to the categories set out therein. It is so because the Legislature has used expression "means". Mr. Samdani would urge that "banking company" incorporated in section 2(e) ofof 1993 has to be given the same meaning as is given in section 5(c) of the Banking Regulation Act, 1949 which means any company as provided in clause (d) of section 5 transacting banking business in India. He contended that when incorporation of one section of a former Act is done in later Act, it is only incorporation of that section of the former Act into the later Act and nothing beyond it. According to him in case of an exception or fiction in the former Act which is not specifically incorporated in the later Act it is not permissible to refer the exception or fiction provided in the former Act into later Act. With reference to section 56(a)(i) of the Banking Regulation Act, learned counsel urged that the said provision creates a deeming fiction/exception, which is created to facilitate reading of certain provisions of the Banking Regulation Act alone and the provision contained in section 56(a) has no effect whatsoever on the definition of "banking company" in section 5(c) of the Banking Regulation Act, 1949. Mr. Samdani submitted that, if the intention of the Legislature was to give an expansive meaning to the expression "bank" under section 2(d) or to the expression "banking company" in section 2(e) of theof 1993, the intention would have been express. According to him the very fact that in section 2(d) only five categories of banks are stated including Regional Rural Bank which are exhaustive, the intention of the Legislature to exclude Co-operative Banks therefrom is plain and apparent. Mr. Samdani, learned counsel for the respondents contended that section 2(e) ofof 1993 states that "banking company" shall have the meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act and, therefore, it should have same meaning under section 5(c) of the Banking Regulation Act, 1949 which excludes co-operative bank inasmuch as under section 5(c) of the Banking Regulation Act, no other meaning apart from the company carrying on business of banking can be assigned. He invited our attention to independent definition given to "Co-operative Bank" under section 56 of the Banking Regulation Act. He, thus urged that by reason of exception/deeming fiction under section 56(a)(i) of the Banking Regulation Act the meaning which is assigned to "banking company" under section 5(c) is not altered nor intended to be altered and the impugned orders cannot be faulted. Mr. Samdani relied upon (i) Secretary of State vs. Hindustan Co-operative Insurance Society Ltd. AIR 1931 Privy Council 149, (ii) State of Karnataka vs. K Gopalkrishna Shenoy and another, (1987) 3 SCC 655 [LQ/SC/1987/491] , (iii) Bolani Ores Ltd. vs. State of Orissa, (1974) 2 SCC 777 [LQ/SC/1974/287] , (iv) M/s Onkarlal Nandlal vs. State of Rajasthan and anr., (1985) 4 SCC 404 [LQ/SC/1985/296] , (v) Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others, (1987) 1 SCC 424 [LQ/SC/1987/78] , (vi) P. Kasilingam and others vs. P.S.G. College of Technology and others, AIR 1995 SC 1395 [LQ/SC/1995/414] , (vii) Ichchapur Industrial Co-operative Society Ltd. vs. Competent Authority, ONGC and another, (1997) 2 SCC 42 [LQ/SC/1996/2242] and (viii) M/s Pheonix Impex vs. State of Rajasthan, AIR 1998 Rajasthan 100.

5. We thoughtfully reflected over the matter and considered the submissions made by the learned senior counsel and the learned counsel appearing for the parties. The controversy raised in writ petition can only be resolved by consideration and understanding of relevant provisions of the of 1993, Banking Regulation Act, 1949, and the mode of legislation by incorporation. We would first, therefore, refer to provisions of Act of 1993. Act of 1993 was enacted to provide for establishment of tribunals for expeditious adjudication of recovery of debts due to Banks and Financial Institutions and for the matters connected therewith or incidental thereto. Section 2(d) and (e) ofof 1993 define "bank" and "banking company" respectively which read thus:

"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;

(e) "banking company" shall have the meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949);"

6. Section 5(c) and 5(d) of the Banking Regulation Act, 1949 define "banking company" and "company" respectively in following manner:

"5(c) "banking company" means any company which transacts the business of banking (in India);

5(d) "company" means any company as defined in section 3 of the Companies Act, 1956 (1 of 1956); and includes a foreign company within the meaning of section 591 of that Act;"

7. In the year 1966 part V was inserted in the Banking Regulation Act, 1949 to make said Act applicable to the Co-operative Societies subject to modifications. Section 56 in part V of the of 1949 to the extent it is relevant for the present purpose reads thus:

"56. Act to apply to Co-operative Societies subject to modifications.- The provisions of this Act, as in force for the time being, shall apply to, or in relation to, Co-operative societies as they apply to, or in relation to, banking companies subject to the following modifications, namely

(a) throughout this Act, unless the context otherwise requires -

(i) references to a "banking company" or "the company" or "such company" shall be construed as references to a Co-operative Bank;

(ii) reference to "commencement of this Act" shall be construed as reference to commencement of the Banking Laws (Application to Co-operative Societies) Act, 1965 (23 of 1965);

(b) in section 2, the words and figures "the Companies Act, 1956 (1 of 1956), and" shall be omitted;

(c) in section 5 -

(1) after clause (cc), the following clauses shall be inserted, namely -

(cci) "Co-operative Bank" means a State Co-operative Bank, a Central Co-operative Bank and a primary Co-operative Bank."

8. A look at the aforesaid provisions would show that under clause (i) of section 2(d) ofof 1993 "bank" means a "banking company" which by virtue of section 2(e) shall have meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act, 1949. Section 56 of Banking Regulation Act provides that throughout the, unless the context otherwise requires, reference to the "banking company" or "company" shall be construed as reference to co-operative bank. The controversy that centers round the aspect is that according to the petitioners the meaning of expression "banking company" as understood under Banking Regulation Act at the time of incorporation has to be given while construing the expression "banking company" under section 2(e) while the respondents contend that the meaning given to the expression "banking company" in clause (c) of section 5 of the Banking Regulation Act, 1949 alone has been incorporated in section 2(e) ofof 1993 and other provisions of Banking Regulation Act, 1949 including Part V cannot be seen for the purpose.

The legislation by incorporation of an earlier Act into a later Act is well known legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later Act. Mary Roy vs. State of Kerala, AIR 1986 SC 1011 [LQ/SC/1986/45] . In Ramsarup vs. Munshi, AIR 1963 SC 553 [LQ/SC/1962/291] , it has been held when an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if it has been "bodily transposed into it". In Re. Woods Estate, Ex-parte, Works and Buildings Commrs. (1886) 31 Ch D 607 the effect of incorporation is admirably stated by Lord Esher, M. R. which reads thus:

"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those into the new Act as if they had been actually written in it with pen, or printed in it."

9. In Portsmouth Corporation vs. Smith, (1885) 10 Apex Court 364 P. 371 (III) Lord Blackburn propounded the proposition thus:

"Where a single section of an Act of Parliament is introduced into another Act, I think, it must be read in the sense which it bore in the original Act from which it is taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in the new Act."

Lord Blackburn further observed thus:

"I do not mean that if there was in the original Act a section not incorporated, which came by way of a proviso or exception on that which is incorporated, that should be referred to, but all others, including the interpretation clause, if there be one, may be referred to. It is dangerous mode of draftsmanship to incorporate a section from a former Act; for unless the draftsman has a much clearer recollection of the whole of the former Act than can always be expected, there is great risk that something may be expressed which was not intended."

10. In Surana Steels Pvt. Ltd. vs. Dy. Commissioner of Income and others (supra) the Apex Court considered the celebrated statement of law propounded by Lord Blackburn and in paragraph 12 of the report observed thus:

"Once we have ascertained the object behind the legislation and held that the provisions of section 205 quoted hereinabove stand bodily lifted and incorporated into the body of section 115-J of the Income Tax Act, all that we have to do is to read the provisions plainly and apply rules of interpretation if any ambiguity survives. Section 205(1) first proviso clause (b), of the Companies Act brings out the unabsorbed portion of the amount of depreciation already provided for computing the loss for the year. The words "the amount provided for depreciation" and "arrived at in both cases after providing for depreciation" make it abundantly clear that in this clause "loss" refers to the amount of loss arrived at after taking into account the amount of depreciation provided in the profit and loss account."

11. In U.P. Avas Evam Vikas Parishad (supra), R.H. Sahai, J., carved out the following principle:

"The determination if a legislation was by way of incorporation or reference is more a matter of construction by the courts keeping in view the language employed by the, the purpose of referring or incorporating provision of an existing Act and the effect of it on the day-to-day working. Reason for it is the courts prime duty to assume that any law made by the Legislature is enacted to serve public interest."

12. In Bolani Ores Ltd. vs. State of Orissa (supra) upon which strong reliance was placed by Mr. Samdani Paragraph 29 of the report held thus:

"..... If this be the purpose and object of the Taxation Act, when the motor vehicle is defined under section 2(c) of the Taxation Act as having the same meaning as in the Motor Vehicles Act, 1939, then the intention of the Legislature could not have been anything but to incorporate only the definition in the Motor Vehicles Act as then existing namely, in 1943, as if that definition was bodily written into section 2(c) of the Taxation Act. If the subsequent Orissa Motor Vehicles Taxation (Amendment) Act, 1943, incorporating the definition of "motor vehicle" referred to the definition of "motor vehicle" under the as then existing, the effect of this legislative method would, in our view amount to an incorporation by reference of the provisions of section 2(18) of thein section 2(c) of the Taxation Act. Any subsequent amendment in the or a total repeal of the under a fresh legislation on that topic would not affect the definition of "motor vehicle" in section 2(c) of the Taxation Act. This is a well-accepted interpretation both in this country as well as in England which has to a large extent influenced our law. This view is further reinforced by the use of the word "has" in the expression "has the same meaning as in the Motor Vehicles Act, 1939" in section 2(c) of the Taxation Act, which would perhaps further justify the assumption that the Legislature had intended to incorporate the definition under the as it then existed and not as it may exist from time to time. This method of drafting which adopts incorporation by reference to another Act whatever may have been its historical justification in England in this country does not exhibit an activistic draftsmanship which would have adopted the method of providing its own definition. Where two Acts are complimentary or interconnected, legislation by reference may be an easier method because a definition given in the one Act may be made to do as the definition in the other Act both of which being enacted by the same Legislature."

13. The Privy Council in Secretary of State vs. Hindustan Co-operative Insurance Society Ltd. (supra) observed thus:

".... In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second; see the cases collected in "Craies on Statute Law". This doctrine finds expression in a common form section which regularly appears in the Amending and Repealing Acts which are passed from time to time in India. The section runs,

"The repeal by this Act of any enactment shall not affect any Act in which such enactment has been applied, incorporated or referred - to."

The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their lordships think that the principle involved is as applicable in India as it is in this country.

It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition."

14. In Co-operative Bank Employees Union vs. Saraswat Co-operative Bank Ltd. the learned Single Judge of this Court was dealing with question whether inclusion of part V in Banking Regulation Act, 1949 with effect from March 1, 1966 by Amending Act 23 of 1965 would enable Saraswat Co-operative Bank Ltd. to claim that the provisions of B.I.R. Act were no longer applicable to them. The learned Single Judge in order to decide that issue referred to the relevant provisions of B.I.R. Act and Banking Regulation Act, 1949 and observed that the effect of the amendment of the Banking Regulation Act, 1949 is to include the "co-operative Bank" in the expression "banking company" in section 5 of the Act, and as such the provisions of the B.I.R. Act would not longer be applicable to the co-operative banks. Paragraph 8 of the report read thus:

"Now, if the expression "banking company" throughout the which includes section 5 defining the expression "banking company" throughout the which includes section 5 defining the expression "banking company" and "the company" is to be construed as reference to a co-operative bank, then is it possible to claim that for the purpose of construing proviso to sub-section (3) of section 2 of the B.I.R. Act the expression "banking company" should be restricted and co-operative banks should be excluded In my judgment, such a construction would not be appropriate. As held by the Division Bench in the case of Majdoor Sahakari Bank (supra) expression "banking company" in the notification issued under the 1938 Act was given wider meaning so as to include the co-operative banks. The Legislature by 1966 amendment specifically provided that reference to a banking company shall be construed as a reference to the co-operative bank, and therefore, while construing the expression "banking company" in the proviso to sub-section (3) of section 5 of the B.I.R. Act it must be held that the co-operative banks in more than one State shall be excluded from the application of the. Dr. Kulkarni submitted that it is not permissible to take into account the prior history of the legislation and it is necessary to interpret the words of the proviso literally. It is not possible to accept this submission. In this connection it would be appropriate to make reference to a celebrated passage in the decision of the Supreme Court reported in R.M.D. Chamarbaugwalla vs. Union of India (2) Mr. Justice Venkatarama Ayyar, speaking for the Bench, while considering the submission that it is not open to rad a limitation in an enactment by reference to extraneous consideration when the language of the enactment is clear and unambiguous, observed:

"Now, when a question arises as to the interpretation to be put on an enactment, what the court has to do is to ascertain "the intent of them that make it", and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other material. "The literal construction then," says Maxwell on Interpretation of Statutes, 10th Edn. P. 19 "has it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke; 1. What was the law before the was passed; 2. What was the mischief or defect for which the law had not provided; 3. What remedy Parliament has appointed; and 4. The reason of the remedy. "The reference here is to Heydon's case (1584) 3 W.Rep 16. These are principles well settled, and were applied by this Court in "The Bengal Immunity Company Ltd. vs. The State of Bihar and others (3).

This decision was followed by a Division Bench of this Court in the decision reported in 1962 (1) Labour Law Journal Page 61 between Bipat Beni and Sawarkar (P.D.). A reference can be useful made to the observation of the Supreme Court in the case reported in 1976 (1) Labour Law Journal page 463 between Workmen of National and Grindlays Bank Ltd., and the National and Grindlays Bank Ltd. Mr. Justice Bhagwati, speaking for the Bench observed:

"It is well settled rule of interpretation that when the Legislature uses certain words which has acquired a definite meaning over a period of time, it must be assumed that those words have been used by the Legislature in the same sense."

Relying upon the principles laid down by the Supreme Court, it is obvious that it would not be proper to give a literal interpretation to the expression contained in the proviso to sub-section (3) of section 2 and the proper interpretation should be made with reference to the legislative history and the decision of the Division Bench of this Court. It will have to be borne in mind that legislature was conscious of the interpretation put by the High Court to apply the provisions of B.I.R. Act to co-operative banks. The statement of object and reasons also indicate that intention was to confer power of referring disputes between banks having branches in more than one State and its employees, on the Central Government and not left to the State Governments. The intention was to cover all banks and not only banking companies as defined under section 5 of the Banking Companies Act. It is necessary therefore, to place much interpretation which would advance the intention of the legislature. In my judgment, the effect of the amendment of the Banking Regulation Act, 1949 is, to include the co-operative Bank in the expression "banking company" in section 5 of the Act, and as such the provisions of the B.I.R. Act would no longer be applicable to the co-operative banks."

15. As we read the judgment cited supra, the legal position seems to us is that when the particular provision of the earlier Statute is incorporated in the subsequent Act, such provision so understood in the first Act at the time of incorporation has to be given the same meaning in the subsequent Act. It is always open for the court to refer to relevant provisions of the earlier Act from which the provision has been enacted in the subsequent Act though not specifically incorporated, if such provisions throw light to the meaning of provision which has been incorporated in the subsequent Act. In the classic and celebrated words of Lord Blackburn, it is perfectly legitimate to refer to the rest of the from where a single section has been incorporated in order to ascertain what the section meant, though rest of the sections have not been incorporated in the subsequent Act. When a provision is adopted in any later Act, such adoption by incorporation ordinarily and normally takes in all the amendments in the earlier Act till the date of adoption. The exception being the provisions not incorporated which has come in the section incorporated as an exception or proviso.

In this backdrop of legal position when we examine the of 1993 which defines expressions "bank" and "banking company" in section 2(d) and 2(e) respectively inter-alia the "bank" means a banking company, and "banking company" shall have same meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act, 1949; section 5(c) of the Banking Regulation Act, 1949 wherein "banking company" means any company transacting business of banking in India; the "company" under section 5(d) of Banking Regulation Act which means any company as defined in section 3 of the Companies Act, 1956 and includes a foreign company within the meaning of section 591 of that Act and section 56(a) of the Banking Regulation Act which provides that references to a "banking company" or "company" or "such company" in Banking Regulation Act shall be construed as references to a "Co-operative Bank" unless the context otherwise requires, the "banking company" in section 5(c) without hesitation would include co-operative bank. While reading the definition of "banking company" in clause (c) of section 5 of Banking Regulation Act and to find the meaning assigned to in that clause for the purposes of Act of 1993, section 56(a)(i) of Banking Regulation Act cannot be overlooked rather the provision contained in section 56(a)(i) has to be read - as the said section 56(a)(i) was in existence at the time of incorporation.

When the legislature provided in section 2(e) ofof 1993 that the "banking company" shall have the meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act, 1949 obviously it intended to include whatever was meant by the expression "banking company" occurring in the Banking Regulation Act including Chapter V or for that matter section 56 which was already existing at the time of incorporation. We can discern the intention of the legislature by the fact that legislature in section 2(e) ofof 1993 has used the expression "meaning assigned to it in clause (c) of section 5 of Banking Regulation Act, 1949" in contradistinction to the expression, "as defined in clause (c) of section 5 of the Banking Regulation Act, 1949." By virtue of section 56(a)(i) of the Banking Regulation Act, 1949 the meaning assigned to the word "banking company" in clause 5(c) of the Banking Regulation Act, 1949 would include co-operative bank. Section 56(a)(i) of the Banking Regulation Act, 1949 inserted since March 1, 1966 provides without ambiguity that reference to the word "banking company" shall be construed as reference to co-operative bank throughout the Banking Regulation Act. In other words the reference to the "banking company" in clause 5(c) of the Banking Regulation Act, 1949 shall include reference to co-operative bank as well. The expression "banking company" for the purposes of Act of 1993 has to be given the meaning assigned to it in the Banking Regulation Act, 1949, which includes Co-operative Bank. Once it is held that under section 2(e) ofof 1993 "banking company" includes co-operative bank, as a necessary corollary, co-operative bank shall be covered under section 2(d)(i) as thereunder "bank" means "a banking company". The word "company" in the expression "banking company" is not restricted to the company registered under the Companies Act carrying on banking transaction but shall also include the Co-operative Bank by virtue of section 56(a)(i) having been inserted in the Banking Regulation Act, 1949 w.e.f. March 1, 1966 since section 56(a)(i) says that throughout Banking Regulation Act, the references to "banking company" the company" or "such company" shall be construed as references to co-operative bank. This is logical as well because the Legislature while introducing the banking laws applicable to the Co-operative Banks intended to confer the same benefits to them as available to the banking companies since the co-operative banks were also made subject to supervisory control of Reserve Bank of India. When we see the background in which Part V was included in Banking Regulation Act with effect from March 1, 1966 by Act 23 of 1965 we find that amending Act 23 of 1965 was passed with a view to bring co-operative banks within the ambit of Banking Regulation Act. The statement of objects and reasons for the amending Act reads thus:

"The provisions of the Banking Companies Act, 1949, are not now applicable to or in relation to Co-operative Banks. The deposits and working funds of Co-operative Banks are now so large that the extension of more important provisions of the Banking Companies Act, 1949 (and of certain other allied provisions of Reserve Bank of India, 1934) to these banks will be in the public interest. The Bill seeks accordingly to extend to the State Co-operative Banks, the Central Co-operative Banks and the more important primary non-agricultural co-operative banks certain provisions of the existing Central Laws which are relatable to 'banking'."

From the careful and, conjoint reading of the Banking Regulation Act, Act of 1993 and the respective preamble, objectives and reasons, it would be clear that the co-operative banks were not at all intended to be excluded from the benefits of machinery made available to the banks under Act of 1993 for recovery of outstanding debts. The Act of 1993 was enacted to work out suitable mechanism through which the dues to the Banks and Financial Institutions could be recovered and realised without delay. The Parliament felt the need to set up special Tribunals and fora for the speedy recovery of dues and loans to the banks and financial institutions as the significant portion of the funds was blocked and rendered unproductive. The Parliament does not appear to have intended to discriminate between the co-operative banks and banking companies for the purposes of Act of 1993 and it was for this reason that in section 2(e) of theof 1993, it was provided that "banking company" shall have the meaning assigned to it in clause (c) of section 5 of the Banking Regulation Act, 1949 which by virtue of section 56(a)(i) included co-operative banks already.

16. The submission of learned counsel for the respondents that "banking company" as defined in the Banking Regulation Act is required to be given restrictive meaning by reason of use of expression "means" is noted to be rejected. What is already covered in section 5(c) of the Banking Regulation Act by virtue of insertion of part V and particularly section 56(a)(i) to the effect that throughout the said Act unless the context otherwise required, the references to "banking company" or "the company" or "such company" shall be construed as references to the co-operative bank cannot be excluded by giving such meaning to the expression "banking company" which was never intended and contemplated by the Legislature.

17. Yet another submission of learned counsel for the respondents that if the intention of the Legislature was to give expanded meaning to expression "banks" under section 2(d) or to expression "banking company" under section 2(e) of theof 1993 to include co-operative banks, the legislature would have said so expressly, also does not merit acceptance since when the legislature stated that "banking company" shall have same meaning as assigned under section 5(c) of Banking Regulation Act, 1949, the legislature was aware that section 5(c) has already been expanded by insertion of part V, particularly section 56(a)(i) and it was not necessary, therefore, to expressly provide for co-operative banks. There are different ways of drafting legislation. Sometimes draftsmen thinks what is implicit need not be said expressly. In Bolani Ores Ltd. (supra) upon which strong reliance was placed by Mr. Samdani also the Apex Court while considering the expression "has the same meaning as in the Motor Vehicles Act, 1939" observed that when the 'Motor Vehicle' is defined under section 2(c) of Taxation Act as having the same meaning as in the Motor Vehicles Act, 1939 then the intention of the Legislature was to incorporate the definition in the Motor Vehicles Act as then existing. Obviously any change in the definition in earlier Act after incorporation could not be read in the later Act. Insofar as the definition of "banking company" in section 5(c) of Banking Regulation is concerned, it cannot be read in isolation and exclusion of 56(a)(i) which was existing at the time of incorporation and provided that reference to the "banking company" or "the company" in the Banking Regulation Act shall be construed to refer to the co-operative bank as well.

We find ourselves unable to agree with the submission of Mr. Samdani that section 56(a)(i) is provision of exception and/or deeming fiction and by reason of deeming fiction under section 56(a)(i) of Banking Regulation Act, 1949, the meaning which is assigned to "banking company" in section 5(c) is not altered or intended to be altered. Firstly, section 56(a)(i) is not the provision of exception as was sought to be contended, it is only provision of legal fiction whereby references to "banking company" or "the company" in Banking Regulation Act, 1949 are deemed to be references to the co-operative bank also unless the context requires otherwise. Secondly by the expression "throughout this Act" used in section 56(a)(i) of Banking Regulation Act, section 5(c) thereof cannot remain untouched and has to be read having reference to Co-operative bank. Even otherwise the statement by Lord Blackburn as noted above when applied to section 2(e) of theof 1993 leaves no manner of doubt that though section 5(c) of the Banking Regulation Act alone is incorporated, section 56(a)(i) of that Act must be read and referred to ascertain the meaning assigned to "banking company" in section 5(c). This, in our considered view is the correct approach in construction of section 2(e) of theof 1993 and, accordingly, we hold that co-operative banks are covered under the provisions of Act of 1993.

18. The division bench judgment of Rajasthan High Court in M/s Pheonix Impex (supra) definitely supports Mr. Samdani's arguments and, therefore, he rightly pressed that judgment into service, however, for the reasons which we have indicated above - we need not repeat them- we with respect find ourselves unable to agree with that view. We read judgment of Rajasthan High Court, particularly paragraph 12 and 13 closely and we find the aspects which we have considered and noted above regarding the principles of legislation by incorporation and the law stated by Lord Blackburn in that regard which has been consistently followed by the Courts in India were neither adverted, referred or considered. Rajasthan High Court held that by Act 23 of 1965 and insertion of section 56 in the Banking Regulation Act, the definition of "banking company" under section 5(c) did not change. It is not the question of change of definition of "banking company" under section 5(c) - the question is, can you ignore section 56(a)(i) already existing on statute book while considering the meaning assigned to "banking company" under section 5(c). We do not think blind eye can be turned to the existing 56(a)(i) which provides that references to "banking company" or "the company" or "such company" shall be construed as references to co-operative bank throughout the Banking Regulation Act. Moreover, in view of Rajasthan High Court, a co-operative bank, may be called a banking company by fiction as it is engaged in banking business yet it does not become a "company" formed and registered under the Companies Act and as such under section 2(d), a co-operative bank shall not fall within definition of the "Bank". This reasoning does not appeal us and rather appears to be fallacious. It is obvious that Legislature was alive to the distinction between "banking company" and "co-operative bank" as these are two distinct units but decided to put co-operative banks on par with banking company under Banking Regulation Act and accordingly inserted Chapter V, section 56 particularly therein. Once co-operative bank is deemed to be "banking company" it ipso facto is covered under section 2(d)(i) as "Bank" irrespective of that it is not registered as company under Companies Act.

Incidentally, we may note that the construction put by us to section 2(e) ofof 1993 in holding that co-operative banks are covered by the machinery and the fora provided thereunder advances the objectives and purpose of that Act. Act of 1993 was enacted by Parliament to provide for expeditious adjudication and recovery of debts due to Banks and Financial Institutions. Once the co-operative banks have been brought under the control, regulation and supervision of the Reserve Bank of India, such co-operative banks must be made amenable to the tribunals constituted under Act of 1993 for the expeditious adjudication and recovery of debts due to such banks. Even if such co-operative banks have a machinery available to them under Maharashtra Co-operative Societies Act and also Multi State Co-operative Societies Act, 1984 (now repealed by Maharashtra Co-operative Societies Act, 2002) we find no reason why such co-operative banks should be excluded from the purview of the of 1993.

19. In view of the discussion aforesaid we hold that Act of 1993 is applicable to co-operative banks for adjudication of recovery of debts due to them and for matters connected therewith or incidental thereto. The impugned orders passed by the Debt Recovery Tribunal and Debt Recovery Appellate Tribunal have to be set aside and we do accordingly. The Original Application No. 568 of 2001 made by the petitioners is restored to the file of Debt Recovery Tribunal III for further proceedings in accordance with law.

20. Rule is made absolute in aforesaid terms. No costs.

21. Learned counsel appearing for the respondents at this stage prays that the operation of this order be stayed for sometime. We direct that further proceedings in Original Application No. 568 of 2001 before Debt Recovery Tribunal III, Mumbai shall remain stayed for a period of eight weeks.

Certified copy expedited.