Rajasthan High Court - Jaipur
Sikar Central Co-Operative Bank Ltd. vs Ram Richhpal Jat on 7 January, 1998
Equivalent citations: 1998(1)WLN13
JUDGMENT Shiv Kumar Sharma, J.
1. Instant revision impugns the order November 3, 1995 of the learned Additional Civil Judge (Jr. Div. I) Sikar whereby the application under Order 7 Rule 11 of the Code of Civil Procedure, submitted by the defendant petition (for short the defendant) was rejected.
2. The plaintiff non petitioner (for short the plaintiff) instituted a suit in the trial Court on October 9, 1991 seeking permanent injunction restraining the defendant from removing, receiving and suspending the plaintiff from the services. As per averments of the plaint the plaintiff was appointed driver on December 22, 1987 by the defendant Co-operative Bank and had apprehension that the defendant Bank might remove him from the services.
3. The defendant Bank on May 17, 1994 moved an application under order 7 Rule 11 CPC stating therein that the said Bank was a co-operative Bank registered under the Rajasthan Co-operative Societies Act 1965 (for short the Act). The dispute arose in the plaint was covered under Section 75 of the Act therefore the Civil Court had no jurisdiction to entertain the suit in view of provision contained in Section 137 of the Act. It was further averred that without serving notice under Section 143 of the Act the suit was not maintainable. The plaintiff contested the application by filing reply.
4. Learned trial Court vide impugned order dismissed the application of the defendant holding that provisions of the Act did not bar the jurisdiction of the Civil Court and the said provisions were not applicable.
5. I have given my thoughtful consideration to the arguments advanced by Sh. M.D. Agarwal and Mr. Akhil Simlote, learned Counsel for the parties and carefully scanned the record.
6. Before adverting to the actual controversy it will be useful at this juncture to peruse the relevant statutory provision.
Section 75 of the Act reads thus:
75. Disputes which may be referred to arbitration.-(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management, or the business of a cooperative society arises-
(a) among members, past members and persons claiming through members, past members and deceased members, or
(b) between a member, past member or person claiming though a member, past member or deceased member and the society, its committee or any officer, agent or employee of the society, or
(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer deceased agent or deceased employee of the society, or
(d) between the society and any other cooperative society.
(e) between the society and the surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society or with whom the society has or had transaction under Section 66, whether such a surety is or is not a member of a society, such dispute shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.
(2) For the purpose of Sub-section (1), the following shall be deemed to be disputes touching the constitution, management or the business of a cooperative society, namely.
(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of any officer of the society.
(3) If any question arises whether a dispute referred to the Registrar, under this section is a dispute touching the constitution, management or the business of a cooperative society, the decision thereon of the Registrar shall be final and shall not be called in question in any Court.
Section 137 of the Act runs as under:
137. Bar of jurisdiction of courts. (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of,:
(a) the registration of a cooperative society or of an amendment of a bye-law;
(b) the removal of a committee;
(c) any dispute required under Section 75 to be referred to the Registrar; and
(d) any matter concerning the winding up and the dissolution of a cooperative society.
(2) While a cooperative society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceeded with, or instituted against, the liquidator as such or against the society or any member thereof, except by leave of the Registrar and subject to such terms as he may impose.
(3) Save as provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground whatsoever.
whereas Section 143 of the Act provides thus:
143. Notice necessary in suits.-No suit shall be instituted against a cooperative society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff, and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
7. The Division Bench of this Court in Sawai Madhopur Co-operative Marketing Society Ltd. v. Rajasthan State Cooperative Tribunal Jaipur and Anr. R.L.R. 1989 (2) 555 had occasion to consider the provisions contained in Section 75 of the Act. It was held that the dispute relating validity of suspension and termination of employee of Co-operative society is a dispute touching the management of the society and falls within ambit of Section 75 of the Act.
8. A perusal of Section 137 of the Act demonstrates that no civil Court shall have any jurisdiction in respect of any dispute required under Section 75 to be referred to the Registrar. Similarly Section 143 of the Act provides that a suit against the co-operative society or its officers in respect of any act touching the constitution, management or the business of the society shall not be instituted until the expiration of two months next after notice in writing has been delivered to the Registrar.
9. Order 7 Rule 1 (d) provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In the case on hand that suit appears from the averments in the plaint to be barred by Section 137 and 143 of the Act. The dispute relating validity of suspension and termination of the services of the plaintiff is a dispute touching the management of the defendant Bank and falls within ambit of Section 75 of the Act.
10. Mr. Simlote learned Counsel appearing for the plaintiff canvassed that the defendant Bank already filed the written statement and the case has been posted in the trial Court for framing the issues. Therefore, the legal objections raised by the defendant can be decided after framing the issues by the trial Court and no interference is necessary in revision. I am unable to persuade myself to agree with the argument of the learned Counsel. Order 7 Rule 11 does not either expressly or by necessary implication provide that the power under order should be exercised at a particular stage only. In Samar Singh v. Kedar Nath and Ors. (AIR 1987 SC 1926) it was held by their Lordships of the Supreme Court that the Court would be acting within its jurisdiction in exercise of its power under order 7 Rule 11 in rejecting the Election Petition even after settlement of issues.
11. Under these circumstances, I am of the considered view that the learned trial Court has committed jurisdictional error in rejecting the application of the defendant.
12. Consequently, the revision succeeds and is hereby allowed. The impugned order is set aside and the plaint stands rejected under order 7 Rule 1(d) CPC. Costs easy, Record be sent back forthwith.