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1995 DIGILAW 44 (GUJ)

MAHAVIR COTTON COMPANY,surendranagar v. SAURASHTRA CO OPERATIVE SPINNING MILLS LIMITED,limbdi

1995-01-21

R.A.MEHTA

body1995
R. A. MEHTA, J. ( 1 ) THE original plaintiffs are aggrieved by an order of the trial Court directing the plaints to be returned to the plaintiffs for presentation to the proper Court, on the ground that the Civil Court has no jurisdiction to entertain the plaint against the respondent-Co-operative Spinning Mill. Admittedly, the plaintiffs are not members of the defendant-Mill. It is a dispute between the nonmember and the society. ( 2 ) THE trial Court has relied on the provisions of Sec. 96 (1) (c) which provide that any dispute touching the constitution, management or business of a society shall be referred to the Registrar if the parties thereto are one amongst the following :-" (C) a person, other than a member of the society, who has been granted a loan by the society, or with whom the society has or had transactions under the provisions of Sec. 46, and any person claiming through such a person;"section 46 provides as follows :-"46. Save as is provided in this Act, the transactions of a society with persons other than members, shall be subject to such restrictions, if any, as may be prescribed. "no restrictions have been prescribed under Sec. 46. Therefore, the transactions of the society with non-members are not subject to any restriction under Sec. 46. In absence of any restriction which would attract clause (c) of Sec. 96 (1), it is not possible to hold that Sec. 96 (1) (c) would be attracted. ( 3 ) EVEN if this clause (c) is attracted, that clause (c) has already been struck down by a Division Bench of this Court in the case of Rasiklal Patel v. Kailasgauri ramanlal Mehta, (1971) XII GLR 355 wherein the High Court has allowed the petition by declaring that clauses (c), (d) and (e) and the words "any past or present agent" and "deceased agent" in clause (a) of Sec. 96 (1) as also Explanation II at the end of Sec. 96 are violative of Art. 14 of the Constitution and are, therefore, null and void. Therefore also, the plaint could not have been presented and filed before the Registrar under Sec. 96. ( 4 ) THE trial Court was, therefore, obviously in error in directing the plaint to be returned for presentation to the Registrar under Sec. 96. Therefore also, the plaint could not have been presented and filed before the Registrar under Sec. 96. ( 4 ) THE trial Court was, therefore, obviously in error in directing the plaint to be returned for presentation to the Registrar under Sec. 96. In fact, the Registrar has no jurisdiction and only the Civil Court has jurisdiction. Unfortunately, the learned Civil Judge whose attention was drawn to this ruling did not discuss that ruling and he only referred to it and observed the ruling supported the defendants contention. This was clearly wrong. ( 5 ) IN the result, the appeals succeed and are allowed and the impugned judgments and orders directing the return of the plaints are quashed and set aside. The respondent shall bear and pay the costs of these appeals as well as of trial court. The trial Court is directed to proceed with the suits expeditiously as the suits have already been delayed by more than two years. In Civil Applications, no orders .