Delhi District Court
Shri Mahender Kumar Gupta vs Shri Dalip Kumar Aggarwal on 18 May, 2013
In the Court of Pawan Kumar Matto : Additional District Judge03 : East District :
Karkardooma Courts : Delhi.
S.no: 1251/09
In the matter of :
The Maa Saraswati Cooperative Urban
Thrift & Credit Society Ltd.
28, New Krishna Nagar,
Delhi110 051.
Through It's Secretary
Shri Mahender Kumar Gupta
s/o Late Shri Suresh Chand Gupta
r/o 28, Gali no.3,
New Krishna Nagar, Delhi110 051. .......... Plaintiff
Versus
Shri Dalip Kumar Aggarwal
s/o Shri Brij Bhushan Aggarwal
r/o 65/3, New Rohtak Road,
New Delhi110 005. ...... Defendant.
Date of institution : 12.08.2009
Arguments heard on : 08.05.2013
Order announced on : 18.05.2013
O R D E R
1.This order of mine will dispose of an application u/s 70 of the Delhi Cooperative S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 1 Of 7 Societies Act r.w. Order 7 rule 11 CPC filed by the defendant.
2. Brief facts of the case are that the plaintiff has filed the present suit for recovery of Rs. 3,14,751/ against the defendant and prayed for passing a decree of recovery of Rs. 3,14,751/ alongwith interest and cost in favour of the plaintiff and against the defendant.
3. Whereas, the defendant has filed an application u/s 70 of the Delhi Cooperative Societies Act r.w. Order 7 rule 11 CPC and stated that the plaintiff has suppressed the material facts from this court with regard to the maintainability of the suit, as well as the jurisdiction of this court. It is further stated that the plaintiff has deliberately and intentionally suppressed the fact that if any dispute touching to the constitution, management or the business of a Cooperative Society arises between the Co operative Society and the member are required to be referred to the Registrar of the Cooperative society for decision and no court has jurisdiction to entertain any such suit.
4. It is further stated that the provision under section 70 providing for arbitration is a statutory provision under the Delhi Cooperative Societies act,2003 and specifically bars the jurisdiction of the civil courts to try matters which fall within the ambit of section 70 of the said act.
5. It is further stated that the plaintiff is a registered society in the business of extending loans. It is further stated by the plaintiff in para no.2 of the plaint that the defendant is a registered member of the plaintiff society and his membership is 795. It is further stated that in the various documents relied upon and filed by the plaintiff, there is a declaration that the plaintiff is a society registered under the Delhi Cooperative societies act and it is clear that the plaintiff has deliberately and intentionally S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 2 Of 7 suppressed the fact that there is a provision under the said act to refer the disputes for arbitration before the Registrar of the Cooperative societies with ulterior motives and with a view to harass the defendant and prayed for the dismissal of the suit.
6. Whereas, the plaintiff has contested the application on the ground interalia and stated that the application filed by the defendant is not maintainable because section 70 of the Delhi Cooperative Societies act, 2003, does not mention about any bar about the suit for the recovery. It is stated that there is no dispute regarding the membership of the defendant with the plaintiff society and there is no dispute between the plaintiff and the defendant that the defendant did not borrow any loan from the plaintiff/society and the defendant did not stand surety for his/her family members and relatives and there is also no dispute that the defendant signed the surety bonds for them and it is also not disputed that the defendant did not admit his liability for the loans borrowed by his family members, as the defendant had given an undertaking for making the repayment of the loans borrowed by his relatives and family members. It is further stated that the defendant had also furnished the cheque for his family members, when the defendant and his family members had become defaulters in payment of the loan amounts and further stated that this court is competent to entertain and adjudicate upon the present matter and after denying the other averments mentioned in the application, prayed for the dismissal of the application filed by the defendant.
7. I have heard the ld.counsels for the parties and perused the record.
8. The ld.counsel for the defendant has submitted that since as per mandate of section 70 and 132 of Delhi Cooperative Societies act the jurisdiction of the civil court is barred as the dispute is between the cooperative societies and its member and it is relating to the business of the plaintiff society, as it is relating to the transaction of loan, S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 3 Of 7 so the suit of the plaintiff is liable to be dismissed, as the dispute is covered u/s 70 of Delhi Cooperative Societies Act, so the jurisdiction of this court is barred u/s 132 of the Delhi Cooperative Societies Act.
9. Whereas, the ld.counsel for the plaintiff has submitted that this is not denied that the defendant is the member of the plaintiff society. He has also submitted that borrowers had borrowed the amount from the plaintiff society and the defendant was the guarantor and he had undertaken to pay the suit amount , so he is liable to pay the suit amount and the plaintiff has also paid the requisite court fees, so the plaint cannot be rejected and the civil court is competent enough to adjudicate upon the present matter.
10. I have given thoughtful consideration to the submissions made by the ld.counsel for the parties and perused the record.
11. The perusal of the record shows that the plaintiff has filed the present suit for recovery of Rs. 3,14,751/ alongwith interest till the date of realization against the defendant and it is well pleaded in the para no. 2 of the plaint that the defendant is the registered member of the plaintiff society and he stood surety for the borrowers namely Shri Vijay Singh, Mohit Kumar, Harsh Goel and Asha Sharma, who had taken loan from the plaintiff society.
12. Section 70 of the Delhi Cooperative Societies Act is as follows: Disputes which may be referred for 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 other than a dispute regarding disciplinary action taken by the cooperative society or it's committee against a paid employee of the cooperative society arises: S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 4 Of 7
(a) among members, past members and persons claiming through members, past member and deceased members; or
(b) between a member, past member or person claiming through a member, past member or deceased member and the cooperative society, its committee or any officer, agent or employee of the cooperative society or liquidator, past or present; or (c ) between the cooperative 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 cooperative society; or
(d) between the cooperative society and any other cooperative society, between a cooperative society and liquidator of another cooperative society and the liquidator of another cooperative society;
such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such disputes.
13. Whereas, section 132 of the Delhi Cooperative Societies Act provides:
Bar of jurisdiction of civil or revenue 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 its byelaws or of an amendment of a byelaw;
S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 5 Of 7
(b) the removal of the committee;
(c ) any dispute required under section 70 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 cooperative society shall be proceeded with or instituted against the liquidator as such or against the cooperative 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 or nay ground whatsoever
14. The perusal of the section 70 of the Delhi Cooperative Societies Act, makes it clear that which of the dispute can be referred for arbitration and the bar has been imposed on the jurisdiction of the Civil Court relating to the dispute touching the constitution and management or the business of the Cooperative Societies Act, as per section 132 of the Delhi Cooperative Societies Act, which are covered under section 70 of the Delhi Cooperative Societies Act. Since the present dispute relates to the business of the Cooperative Society, so, in my considered opinion, the specific bars contained u/s 70 r.w. Section 132 of the Delhi Cooperative Societies Act are absolutely applicable to the case in hand. As their lordship of Delhi High Court in case titled as Smt Manju Jain v/s Registrar Cooperative Societies and others CW 2659/1991 is pleased to hold that "The civil court must realise that certain statutes bar the jurisdiction of civil courts under the Delhi Cooperative Societies Act, 1972, section 93 contains such a provision. Any matter which S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 6 Of 7 comes within the purview of section 93 read with section 60 has to be determined in accordance with the provisions of the Act and not by a civil court."
15. Cumulative effect of the above discussion is that since the present matter relates to the business of Cooperative Society, as Shri Vijay Singh, Mohit Kumar, Harsh Goel and Asha Sharma had borrowed the money from the plaintiff and the defendant herein stood surety for them and the plaintiff has filed the present suit for recovery of Rs. 3,14,751/ against the defendant. Since the matter relates to the business of the plaintiff society and thus, it falls within the ambit of 70 of Delhi Cooperative Societies Act.
16. In view of the above discussion, I do not find any force in the submissions made by the ld.counsel for the plaintiff. Accordingly, I am inclined to hold that this court has no jurisdiction to adjudicate upon the present matter, in view of the bar imposed vide section 70 r.w. section 132 of the Delhi Cooperative Societies Act. Accordingly, the application filed by the defendant u/s 70 of the Delhi Cooperative Societies Act r.w. Order 7 rule 11 CPC stands allowed. The suit of the plaintiff is hereby dismissed, as the jurisdiction of this court is barred in accordance with section 70 r.w. Section 132 of the Delhi Cooperative Societies Act. File be consigned to the record room. Decree sheet be prepared accordingly.
Announced in the open Court on:18.5.2013 (Pawan Kumar Matto) Additional District Judge03 (East), Karkardooma Court, Delhi.
S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited
v/s Dalip Kumar Aggarwal 7 Of 7
S.no: 1251/09 The Maa Saraswati Co-operative Urban Thrift & Credit Society Limited v/s Dalip Kumar Aggarwal 8 Of 7