Dinesh Kumar Jain v. Vanoupaj Sahkari Sangh Maryadit, Sagar
2008-11-17
K.C.SHARMA, P.D.MISHRA
body2008
DigiLaw.ai
JUDGMENT Mishra, J. -- 1. This is second appeal filed by the appe11ant against the order of Joint Registrar Cooperative Societies, Sagar passed in FA No. 32/05 on 4.5.2005. 2. Brief facts of the case are that the respondent No.1 Vanoupaj Sahakari Sangh Maryadit, is a registered Co-operative Society u/s 9 of the Act. its area of operation extends to south forest division District Sagar. In accordance with the provision in its Byelaws it undertakes the collection of tendu leaves and sale to the traders after storing it in a storage centre. The society has to engage transporters for this purpose. The society therefore invites tenders and in response to such call, the appellant executed a contract on 23.4.1991 for the transportation of tendu leaves from the collection centers to the Go-down through his Truck No. C.P.V. 2755. On 30.5.1991, 282 bags of tendu leaves were being transported through this Truck, but it came in contact of an electrical wire and there was fire accident causing loss of Rs. 1,44,862.50 for which the respondent No.1 (society) filed a dispute u/s 64 before the Dy Registrar Cooperative Societies, Sagar. The Dy Registrar decided the matter in favour of the respondent No.1 against which the appellant filed First Appeal before the Joint Registrar Co-operative Societies, Sagar, which was registered as Case No. 78-137/2000. Joint Registrar in his impugned order dated 4.5.2005 has confirmed the order passed by Dy Registrar on 19.10.2000. Therefore, the appellant has preferred this Second Appeal basically on the ground that the Lower Courts did not have any jurisdiction to arbitrate the matter as the appellant as well as respondent No.2 are not the Co-operative Society or a member of a Co-operative society. 3. Learned counsel Shri Sanjay Bajpai arguing on behalf of the appellant stated that the lower Courts had jurisdiction in holding the appellant responsible for the loss as the same was caused due to an accident. It was also stated that the lower Courts have not properly adjudicated the matter and they have passed the order which is without jurisdiction. 4. On the basis of the arguments forwarded following substantial question of law was formulated for consideration: "Whether the lower Courts have the jurisdiction to decide the case in view of the provisions of section 64 of the Act?" 5. Learned Counsel for the appellant placed reliance on Sitaram v. Gulab Singh through LRs and others.
4. On the basis of the arguments forwarded following substantial question of law was formulated for consideration: "Whether the lower Courts have the jurisdiction to decide the case in view of the provisions of section 64 of the Act?" 5. Learned Counsel for the appellant placed reliance on Sitaram v. Gulab Singh through LRs and others. 2002 RN 359, M.P. State Cooperative Marketing Federation Ltd. and another v. Additional Judge to the Court of District Judge and others. 1998 RN 270 and Manav Lok Griha Nirman Sahkari Samstha v. Lali Lilli Griha Nirman Sahkari Samstlla and another, 2001 RN 183 in support of his arguments and stated that neither the Dy Registrar nor the Joint Registrar could decide the matter within the ambit of section 64 in light of all above citations. 6. Counsel for the respondent No.1 on the other hand placed his reliance on Writ Petition No. 994/2005, in which the Hon'ble High Court has analyzed the scope of section 64 at great length which is reproduced as under: "For the aforesaid reasons, the contention advanced on behalf of the plaintiff cannot be accepted that although the recent dispute raised by the plaintiff, 'touches the business' of the society and is covered by sub-section (1) of section 64, it being not included in any of the specified categories of disputes in clauses (i) to (v) of sub-section (2) of section 64, is not referable to Registrar. As held above, the dispute 'touches the business' of the society within the meaning of sub-section of section 64. The plaintiff is a nonmember of the society and is held to have or had business transactions with the society within the meaning of clause (c) of sub-section (2). The dispute therefore clearly referable to Registrar for its adjudication. Since, the nature of dispute is covered by the provisions on sub-section (1) it does not matter for the purpose of fits exclusive adjudication by the Registrar, that it does not fall in any of the categories of disputes mentioned in Clauses (i) to (v) of sub-section (2) of section 64.
Since, the nature of dispute is covered by the provisions on sub-section (1) it does not matter for the purpose of fits exclusive adjudication by the Registrar, that it does not fall in any of the categories of disputes mentioned in Clauses (i) to (v) of sub-section (2) of section 64. On a reasonable construction of the provisions both the sub-sections (1) and (2), the disputes covered by sub-section (1) between the parties mentioned in clause (a) to (f) therein together with all categories of disputes enumerated in clauses (i) to (v) of sub-section (2) of section 64 are within the exclusive jurisdiction of the Registrar and the jurisdiction of civil Court with regard to such disputes is expressly barred under sub-section (1) (c) of section 84 of the Act." 7. The Tribunal has also in Revision No. 115/07 order dated 21.10.2008 has analyzed this point elaborately and has reached following conclusions: The word 'touching' means in reference or relation to, respecting, regarding or concerning. But the meaning of the word 'touching' has no bearing on the meaning of the words 'business of a co-operative society.' The scope of the expression 'any dispute touching a business of a co-operative society' is wider than that of the expression 'any dispute as regards the business of a co-operative society.' But the word 'touching' has not the effect of depriving the express words 'the business of a co-operative society' of their full meaning and content so as to include a dispute extraneous to the business of the society. The business of a society is clearly the functions or activities of the society having some continuity, regularity and pern1anency. In deciding as to what the business of a co-operative society is, one must have regard to the general scope of the Act, rules and the bye-laws of the society. The business of the society is not the same thing as the 'affairs of society' or the administration and management of the society. Tribunal in Second Appeal No. 55/2008, Haryana Nagar Grah Niraman Sahakati Samstha Matyadit v. Abhisheikh has placed reliance on Deccan Merchants Co-operative Bank Ltd., v. Mis.
The business of the society is not the same thing as the 'affairs of society' or the administration and management of the society. Tribunal in Second Appeal No. 55/2008, Haryana Nagar Grah Niraman Sahakati Samstha Matyadit v. Abhisheikh has placed reliance on Deccan Merchants Co-operative Bank Ltd., v. Mis. Dalichand Jugraj Jain and others, AIR 1969 SC 1320 , wherein it is held that, the word, "business" in sub-section (1) of section 91 has been used in narrower sense and it means the actual trading or other similar business activity of the society which the society is authorized to enter into under the Act and the Rules and bye-laws. The nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society docs or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business. We however, agree that the words, "touching" is very wide and would include any matter which relates to or concerns the business of a society, but we are doubtful whether the word, "affects" should also be used in defining the scope of the word, "touching". It is not sufficient that there should be a dispute touching the business of the society. This issue has however been very well settled in Marine Times Publications Pvt. Ltd. v. Shriram Transport and Finance Co. Ltd., and another. AIR 1991 SC 626 , wherein Hon'ble Supreme Court has held that in the matters of specific performance and relief for directing a party for executing a particular agreement, the case is not maintainable in a Co-operative Courts. The relevant part of the order is reproduced hereunder: The claim of respondent No.1 society, as made in the plaint, cannot be said to be made through a member, the appellant herein, because it is only when a decree for performance of the said agreement is passed against the appellant, that it could be contended that the other relief, namely, for an order directing respondent No.2 to approve the said transaction is claimed against the society through a member. Moreover, as we have pointed out that relief is only in the nature of ancillary relief, subsidiary to the main relief of specific performance.
Moreover, as we have pointed out that relief is only in the nature of ancillary relief, subsidiary to the main relief of specific performance. In our opinion, the dispute set out in the plaint cannot be said to fall within the scope of section 91(1)(b) of the said Act and, in view of this, the learned Judge of the High Court was, with respect, in error in coming to the conclusion that both the parties to the dispute belonged to the categories covered under section 91(1)(b) of the said Act. In our opinion, it is not necessary for us to decide whether the dispute in question was one "touching the business of the society" because even if what were so, it could not be referred to the Co-operative Court in the view which we have taken as set out earlier." 8. It is evident that the respondent society's main objective is the collection of tendu leaves which have to be transported and stored for which the appellant and respondent No.1 had entered into an agreement on 23.4.1991. Counsel appearing for the appellant was critical about the condition of agreement between the two sides exhibited as Annexure P-1-C. The counsel appearing for the respondent No.1 pointed out that according to this' Agreement', the appellant was responsible to make good loss or damage, if any caused to the produce or other material during the course of transportation. According to him Contractor was also required to get insurance done. 9. From the record of the lower Courts it is clear that the learned lower Courts have based their decisions on all these terms and agreement and they have concurrent findings on the issue that since the lapse on the part of the appellant was obvious he would naturally be liable for making good causing loss. 10. As stated earlier, we are however concerned with the substantial point formulated which is about the jurisdiction of the lower Courts in the light of the provisions of section 64, the same has been closely analyzed and in the light of various findings of Hon'ble High Court and the consistent view the Tribunal held so far, there is no force in the arguments forwarded by the counsel for the appellant and hence the appeal is dismissed, with no order as to costs.