Bombay High Court
Shree Vridheshwar Sahakari Sakhar ... vs International Tyres And Ors. on 20 June, 2002
Equivalent citations: (2003)105BOMLR62, 2003 A I H C 285, (2003) 1 ALLMR 551 (BOM) 2003 BOM LR 2 62, 2003 BOM LR 2 62
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This Writ Petition takes exception to the order dated 22.11.1990 passed by the Maharashtra State Co-operative Court (Bombay) Bench Pune in Appeal No. 305 of 1989.
2. Briefly stated the Respondent No. 1, a registered partnership firm dealing in new tyres required for trucks, trollies, tractors and motor cars etc., filed dispute before the Co-operative Court at Pune, being Arbitration Case No. 105/85/86. It was averred that the firm had supplied tyres to the Petitioner Society and was a creditor of the Petitioner Society. Para 3 of the dispute reads thus ;
3. The dispute is between the creditor of the Society. The opponent Karkhana is a debtor to the disputant firm. The transaction in dispute is from the year 1983. The opponent karkhana agreed to repay the sale price of the goods supplied to it and others on the written note stating therein that the amount of price will be paid by the karkhana (opponent) within a month. The opponent failed to repay the same within the stipulated period. The amounts of price being due from the karkhana became a debt due and payable to the disputant. The dispute is therefore covered under Section 91 of M.C.S. Act, 1960. The relations between the disputant and opponent karkhana are therefore that of creditor and debtor. The dispute touches the business of the karkhana a Society. Therefore this Court has a jurisdiction to try this dispute under the provisions of law.
3. The Petitioner Society resisted the said dispute and inter alia contended that the dispute as filed was without jurisdiction. The Cooperative Court, Pune by order dated 19.7.1989 was pleased to dismiss the said dispute and accepted the objection taken by the Petitioner regarding the jurisdiction of the Co-operative Court to entertain dispute between the Creditor of the Society and the Society. The Co-operative Court also dwelled upon the merits of the claim of the Respondent No. 1.
4. Being aggrieved, the Respondent No. 1 filed appeal before the Maharashtra State Co-operative Appellate Court Bombay, Bench Pune being Appeal No. 305 of 1989. The Appellate Court has however, answered the claim set up by the Respondent No. 1 in the affirmative. In so far as the issue of jurisdiction is concerned, the Appellate Court proceeded to examine the matter on the premise that the Respondent No. 1 was a creditor of the Petitioner Society and therefore the dispute could be maintained under Section 91 of the Maharashtra State Co-operative Societies Act, 1960 (hereinafter referred to as the said Act), as the amount was outstanding in respect of the transaction entered between the parties in connection with the management or the business of the Society. The Appellate Court held that dispute as presented was perfectly within the jurisdiction of the Cooperative Court. This decision is the subject matter of challenge in the present petition essentially on the ground that the Co-operative Court had no jurisdiction under Section 91 of the Act.
5. For deciding this Writ Petition it will not be necessary to advert to the factual matrix of the case or the rival stand taken by the respective parties, if this Court was to take the view that the dispute as filed by the Respondent No. 1 was without jurisdiction. In that case no other issue needs to be examined. For deciding the issue of jurisdiction it will be appropriate to advert to Section 91 of the said Act. The same reads thus:
91. Dispute.-
(1) Notwithstanding (anything contained) in any other law for the time being in force, any dispute touching the Constitution, (elections of the Committee or its officers other than elections of Committees of the specified societies including its officer), conduct of general meetings, management or business of a Society shall be referred by any of the parties to the dispute, or by a federal Society to which the Society is affiliated or by a creditor of the Society, (to the Co-operative Court) if both the parties thereto are one or other of the following: -
(a) a Society, its Committee, any past Committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the Society, or the Liquidator of the Society (or the Official Assignee of a de-registered Society;
(b) a member, past member or a person claiming through a member, past member of a deceased member of Society, or a Society which is a member of the Society (or a person who claims to be a member of the Society) ;
(c) a person other than a member of the Society, with whom the Society, has any transactions in respect of which any restrictions or regulations have been imposed, made or prescribed under Section 43, 44 or 45, and any person claiming through such person;
(d) a surety of a member, past member or deceased member, or surety of a person other than a member with whom the Society has any transactions in respect of which restrictions have been prescribed under Section 45, whether such surety or person is of is not a member of the Society;
(e) any other Society, or the Liquidator of such Society or de-registered Society:
(Provided that, an industrial dispute as defined in Clause (k) of Section 2 of the Industrial Disputes Act, 1947, or rejection of nomination paper at the election to a Committee of any Society other than a notified Society under Section 73-IC or a Society specified by or under Section 73-G, or refusal of admission to membership by a Society to any person qualified therefor (or any proceeding for the recovery of the amount as arrear of land revenue on a certificate granted by the Registrar under Sub-section (1) or (2) of Section 101 or Sub-section (1) of Section 137 or the recovery proceeding of the Registrar or any officer subordinate to him or an officer of Society notified by the State Government, who is empowered by the Registrar under Sub-section (1) of Section 156), shall not be deemed to be a dispute for the purposes of this section).
* * * (3) Save as otherwise provided under (Sub-section (2) to Section 93), no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in Sub-section (1).
Explanation 1. A dispute between the Liquidator of a Society or an Official Assignee of a de-registered Society and the members including past members, or nominees, heirs or legal representative or deceased members of the same Society shall not be referred to the Co-operative Court under the provisions of Sub-section (1).
Explanation 2.- For the purposes of this sub-section, a dispute shall include-
(i) a claim by or against a Society for any debt or demand due to it from a member or due from it to a member, past member or the nominee, heir or legal representative of a deceased member, or servant for employee whether such a debt or demand be admitted or not;
(ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect of a loan by a Society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not;
(iii) a claim by a Society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any servant, past servant, past servant or deceased servant, or by its Committee, past or present, whether such loss be admitted or not;
(iv) a refusal or failure by a member, past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a Society of land or any other asset resumed by it for breach of condition as the assignment.
On plain language of Section 91 it would appear that dispute relating to the management or business of a Society is triable by the Co-operative Court at the instance of the specified persons provided both the parties to the dispute are one or other of the persons described in Clauses (a) to (e) of Sub-section (1).
6. The learned Counsel for the Respondent No. 1 contends that the Respondent No. 1 would fall in the category of persons specified in Clause (a); and for which reason the dispute could be maintained by the Respondent No. 1 against the Petitioner Society under Section 91 of the Act. This submission to my mind, is wholly ill-advised. For, Clause (a) postulates the following persons - a Society, its Committee, any past Committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the Society, or the Liquidator of the Society or the Official Assignee of a de-registered Society. By no stretch of imagination the Respondent No. 1 who claims to be the creditor of the Petitioner Society, can qualify of being any of the specified persons under this clause. The Respondent No. 1 would also not fit into any of the other Clauses (b) to (e). To my mind, Clauses (b), (d) and (e) have no application as they do not relate to the "creditor". The only other clause on which reliance can be placed by the Respondent No. 1 is Clause (c). But then Clause (c) relates to a person other than the member of the Society with whom the Society has had any transaction in respect of which any restrictions or regulations have been imposed, made or prescribed under Sections 43, 44 or 45, and any person claiming through such person. There is nothing on record that the subject transactions between the Petitioner and Respondent No. 1 were in respect of which any restrictions or regulations were imposed, made or prescribed under Sections 43, 44 or 45 of the Act. On the other hand the subject transactions appear to be ordinary ones. In any case, it is nobody's case that the subject transactions would fall in the restricted category of transactions. A priori, the dispute as filed by Respondent No. 1 claiming recovery of amounts in respect of the subject transactions would be outside the scope of Section 91 of the Act. Consequently, the Co-operative Court will have no jurisdiction to try or entertain such a claim. The Appellate Court, to my mind, completely misdirected itself in examining the question on matters which were not germane for answering the point in issue. As I have held that the Co operative Court had no jurisdiction to try or entertain the present dispute, it will be necessary to examine the claim of the rival side on merits. Understood thus, this petition would succeed. The impugned order passed by the Appellate Court will have to be set aside and instead the order passed by the Co-operative Court dismissing the dispute is restored. It is, however, made clear that the conclusion of the Co-operative Court is restored only on the issue of jurisdiction.
7. Petition succeeds. Rule made absolute in the above terms. No order as to costs.
8. At this stage, Mr. Naik points out that under the order of the Court the Petitioner had deposited the decreetal amount in the Civil Court, S.D. Ahmednagar which amount was allowed to be withdrawn by the Respondent No. 1. The Respondent No. 1 shall deposit the said amount in Court within four weeks or in the alternative make over the requisite amount directly to the Petitioner within that period in terms of the Undertaking given before this Court. Ordered accordingly.