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1963 DIGILAW 188 (KER)

HAJI MAMMU KEYE v. THIRURANGADI P. C. C. SOCIETY

1963-07-24

M.MADHAVAN NAIR, M.S.MENON

body1963
Judgment :- 1. The appellant is the owner of a godown, and the respondent a co-operative society registered under the Madras Co-operative Societies Act, 1932 was his tenant. The lease was denied by the respondent. It has been found to be true and binding by both the courts below. 2. The controversy at present relates only to the respondent's liability for rent from 30 61955 to 2612 1956, the date on which the appellant got possession of the premises in pursuance of an interim decree. The answer to the dispute depends on whether there was a valid termination of the lease when the respondent surrendered the key to the appellant by the end of June 1955. The respondent's case is that the key was first sent to the appellant through a peon on 28 61955, that the appellant refused to accept it, that it was thereupon sent to the appellant by registered post, that the appellant still refused it, that it was thereafter produced in court on 23 111955 along with the written statement, that the appellant continued his refusal to to accept the key, and that the respondent then took it back from the court in pursuance of a direction therefrom. The appellant's contention is that he was not bound to accept the key when it was sent through the peon or sent by registered post as the entire rent of the godown from the date of the lease was then in arrears, and that the deposit of the key in court along with the written statement is also of no avail as the respondent chose to take back the key subsequent to the deposit. 3. We are in agreement with the submission made by the appellant, and hold that the rent from 30-6-1955 to 26-12-1956 is due to him from the respondent. The lease in this case has to be treated as a lease from month to month terminable as provided in S.106 of the Transfer of Property Act, 1882 "on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy." No such notice has been set up or proved. 4. The further contention of the respondent is that even if the position is as stated above, no decree can be given by a civil court in view of S.51 of the Madras Co-operative Societies Act, 1932. 4. The further contention of the respondent is that even if the position is as stated above, no decree can be given by a civil court in view of S.51 of the Madras Co-operative Societies Act, 1932. This contention seems to have been raised as a preliminary point before the trial court and negatived by an order dated 20-11-1956. It was apparently not urged before the lower appellate court and there is no reference to it in the judgment of the learned District Judge. 5. The relevant portion of S.51 of the Madras Co-operative Societies Act, 1932, reads as follows: "(1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises (b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or servant of the society. such dispute shall be referred to the Registrar for decision " It is common ground that the appellant is a member of the respondent society, and that one of the objects of the society, as can be seen from Ext. B.1, is "to rent or own godowns for the stocking of paddy or rice or foodgrains or other articles purchased." In these circumstances it is not possible to say that the dispute is not between a person who is a member of the society or that it is not a dispute touching the business of the society. 6. The dispute is a dispute between the society and the owner of a godown who happens to be a member of the society. The dispute has nothing to do with his membership of the society. It is certainly not a dispute between the society and a member qua member. The question for determination is whether the dispute should be between the society and a member qua member for coming within the ambit of S.51 of the Madras Cooperative Societies Act, 1912. 7. The dispute has nothing to do with his membership of the society. It is certainly not a dispute between the society and a member qua member. The question for determination is whether the dispute should be between the society and a member qua member for coming within the ambit of S.51 of the Madras Cooperative Societies Act, 1912. 7. S. 54 of the Bombay Co-operative Societies Act, 1925 provided that if any dispute touching the constitution or business of a society arises between the society or its committee, and any officer, agent, member or servant of the society, past or present, it shall be referred to the Registrar for decision by himself or his nominee or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. That provision came up for consideration before Chagla C. J., and Bhagwati J. in Shyam Co-operative Housing Society Ltd. v Ramibai Bhagwansing Advani and others (AIR. 1952 Bom. 445). The Court said: "Now, before a case can fall under S.54, it is not sufficient that there should be a dispute touching the business of the society. What is further required is that the dispute must be between the society and its member, and proper emphasis has got to be laid upon the expression'member' used in this section. The dispute must be between the society and the member as a member or quae a member. It must be a dispute in which the member must be interested as a member. It must relate to a transaction in which the member must be interested as a member. It is not every dispute between a society and a member which falls within the ambit of S.54. There may be many disputes between the society and its members in which the members are not concerned as members at all, and they are in the same position as strangers. Take this very case. The loan might have been raised from an outsider or from a stranger. The society in this case chose to take a loan from a member and the member chose to advance the loan to the society. That fact does not make it a dispute between the society and its member. Take this very case. The loan might have been raised from an outsider or from a stranger. The society in this case chose to take a loan from a member and the member chose to advance the loan to the society. That fact does not make it a dispute between the society and its member. There is no obligation upon the society to raise loans only from its members, nor is there any obligation upon its members to advance loans to the society. There are various matters where there might be a dispute between the society and the member where the member is interested or involved in the dispute as a member. In those cases S.54 would have application. But where we have a case where a member advances a loan to the society which he is under no obligation to advance, it is merely a coincidence that he happens to be a member of the society. It is not by reason of his capacity or position as a member that the loan was advanced." We are in respectful agreement with this view. 8. A contrary view is indicated in Mishrimal v. District co-operative Growers' Association Ltd. (AIR. 1961 Madhya Pradesh 40). According to that decision the Registrar has jurisdiction "to decide any dispute between a society and its member, even though the transaction leading to the dispute has no relation to the capacity of the member as such, provided that transaction touches the business of the society. 9. The Bombay decision was apparently not cited before the High Court of Madhya Pradesh and there is no reference to it in the judgment of that Court. We find it difficult to endorse the view that the dispute between a society and a member need not be in his capacity as a member of the society. 10. According to the appellant's counsel even if the provision for arbitration under S.51 of the Madras Co-operative Societies Act, 1932, is attracted, the respondent should fail for lack of compliance with S.34 of the Arbitration Act, 1940. 10. According to the appellant's counsel even if the provision for arbitration under S.51 of the Madras Co-operative Societies Act, 1932, is attracted, the respondent should fail for lack of compliance with S.34 of the Arbitration Act, 1940. He cited S.46 of the Arbitration Act, 1940 "The provisions of this Act except sub-section (1) of S.6 and S.7,12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder." and the following passage from Raghunath Prasad and others v. Gurdyal Prasad and others (AIR. 1956 Allahabad 194): "If a person, who has been a party to an arbitration agreement, brings a suit ignoring that agreement, the defendant's remedy, if he wants to rely on that agreement, is to proceed under S.34, Arbitration Act, and to ask for stay of the suit. If he does not avail of that remedy, the court has jurisdiction to hear the suit and to give a decision on merits." 11. In the view we have taken that S.51 is not attracted to the case before us this question does not arise for consideration. In South Indian Cooperative Insurance Society, Ltd. v. Bapi Raju (AIR. 1955 Mad. 694) Mack J., said: "It is only necessary to refer to S.46 of the Arbitration Act which makes the great bulk of its provisions including S.34 and 39 applicable to 'every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so fat as this Act is inconsistent with that other enactment or with any rules made thereunder.' S.51 (1) (d) of the Madras Co-operative Societies Act in its statutory and mandatory direction that all disputes coming within the scope of S.51 shall be referred to the Registrar for disposal is clearly inconsistent with S.34 and 39 of the Arbitration Act." We need only say that we see considerable force in this pronouncement. 12. 12. In the light of what is stated above the second appeal has to be allowed; and we do so with costs, here and in the courts below. Allowed.