Bombay High Court
Shri Ganpati Zilla Krishi Audyogic vs A.S. Lahoti Family Trust on 29 September, 2008
Author: Nishita Mhatre
Bench: Nishita Mhatre
vss
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2892 OF 1995
Shri Ganpati Zilla Krishi Audyogic
Sarvaseva Sahakari Society ... Petitioner
V/s.
A.S. Lahoti Family Trust ... Respondent
Mr.N.V. Walawalkar for Petitioner
Mr.S.S. Hardikar for Respondent
CORAM: SMT.NISHITA MHATRE, J.
J DATED: SEPTEMBER 29, 2008 ORAL JUDGEMENT:
. The petition challenges the order passed by the Cooperative Court holding that it has jurisdiction to entertain the dispute between the petitioner and the respondent. The appellate Court has confirmed this order and that order has also been challenged in the present petition.
2. The undisputed facts giving rise to the petition are as follows:
The petitioner and the respondent had certain commercial transactions due to which some amounts according to the respondent were payable to the Trust by the Petitioners. A dispute was therefore preferred on 11.1.1988 before the Cooperative Court for recovery of the amounts due ::: Downloaded on - 09/06/2013 13:55:05 ::: : 2 : and payable by the Petitioner. The petitioner applied to the Cooperative Court for framing issues regarding the maintainability of the application u/s 121 of the Maharashtra Cooperative Societies Act. The application was opposed by the respondent. The Cooperative Court has held that since the respondent was a creditor and the petitioner was a society any dues payable by the Society to a creditor could be recovered by filing a dispute u/s 91. The Co-operative Court has relied on the decision of the appellate Court in Appeal No.305 of 1989 decided on 22.11.1990 where it had held that a creditor can file a dispute u/s 91 for recovery of dues from a society. The revisional Court has while confirming the order held that the dispute touches the business of the society i.e. the business of supplying gas, appliances and accessories and therefore, the dispute is maintainable.
3. Mr.Walawalkar, learned Counsel for the petitioner, submits that there is a grave miscarriage of justice due to the orders impugned in this petition. He points out that section 91 of the Maharashtra Cooperative Societies Act does not contemplate a dispute with regard to a transaction such as the one between the petitioner society and the respondent trust. He submits that it was a pure and simple commercial transaction between two parties. The respondent claims certain ::: Downloaded on - 09/06/2013 13:55:05 ::: : 3 : amounts were due and payable to it for goods sold and delivered by it to the Petitioner which was disputed by the latter. He points out that unless the amount is decided by the competent Court and there is a decree passed against the petitioner for recovery of that amount, it would not be liable to pay the amount under the MCS Act. He contends that in any event, the transaction between the parties was not one which touched the business of the society and, therefore, both the Courts below had erred in deciding that the cooperative court had jurisdiction to entertain the dispute between the petitioner and the respondent.
4. Undisputedly, the petitioner had placed orders for the supply of gas appliances, machineries from the respondent which was dealing with such products. An account was maintained by the petitioner. Certain amounts have been paid to the respondent by the petitioner society including an amount of Rs.75000/- on 15.1.1984. Strangely, the Cooperative Court has found that because some arrears or dues had not been paid by the petitioner, the respondent being a creditor of the Petitioner society and, therefore, had the right to file an application under section 91 of the MCS Act. Unless the dues payable to the creditor of the society are quantified, the creditor of the society cannot file a dispute to recover that amount from the society. The ::: Downloaded on - 09/06/2013 13:55:05 ::: : 4 : dues are not admitted by the petitioner society. In fact, a running account was maintained by the society which was required to be reconciled at the foot of the account. This admittedly had not been done by the parties nor was any decree passed by any Civil Court holding that the petitioner was liable to pay any amount to the respondent. In such circumstances, it is impossible to accept the findings of both the Cooperative Court and the appellate Court that the dispute is maintainable under the MCS Act. Apart from this, the dispute between the petitioner and the respondent does not touch the business of the society as contemplated u/s 91 but was a money claim made against the society. The Respondent was admittedly not a member of the Petitioner society. The words "business of the society" would have to mean the day to day management and administration of the society. In my opinion, therefore, both the Courts have grossly erred in deciding that the Cooperative Court had jurisdiction to entertain the dispute.
5. The petition is allowed. The orders of both the Courts below are set aside. Rule made absolute in terms of prayer clauses (a) and (b).
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