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Madhya Pradesh High Court · body

2009 DIGILAW 800 (MP)

ADIM JATI SEVA SAHAKARI SAMITI MARYADIT v. KODAR

2009-07-14

A.K.SHRIVASTAVA

body2009
Judgment ( 1. ) THIS second appeal has been filed by the defendant against impugned judgment and decree passed by the learned First Appellate Court decreeing the suit of the plaintiff by reversing the judgment and decree passed by the Trial Court dismissing his suit. ( 2. ) IN brief, the case of plaintiff-respondent is that he obtained loan on 29. 3. 1986 to the tune of Rs. 14,500/- from defendant no. 2-Dhar District Cooperative Central bank Maryadit Dahi. According to the plaintiff the State of M. P. has framed a scheme namely Madhya Pradesh Agriculture Debt Relief Scheme, 1990 and under this scheme the Bank is not entitled to recover the debt amount and also the interest. Plaintiff hence filed a suit praying that the amount of loan of Rs. 14,800/- and interest Rs. 10,000/- which is to be recovered by defendant-Bank cannot be realized from him under the said scheme. ( 3. ) THE defendants though they were served did not appear in the Trial Court and hence the Trial Court proceeded ex-parte against them. The learned Trial court after recording the evidence of plaintiff dismissed his suit. An appeal was filed by the plaintiff against the judgment and, decree passed by learned Trial court dismissing the suit and the learned First Appellate Court by the impugned judgment and decree has allowed the appeal and decreed the suit. ( 4. ) IN this manner this second appeal has been filed by the defendant no. 1-Society challenging the judgment and decree of learned First Appellate Court, ( 5. ) THE plaintiff/respondent no. 1 had died during the pendency of this second appeal and his legal representatives have been brought on record, however, nobody is appearing on their behalf though they are served. ( 6. ) THIS second appeal was admitted by this Court on 13. 1. 1998 on the following substantial question of law: "whether the jurisdiction of Civil Court was barred u/s. 64 of the m. P. Co-operative Societies Act. " ( 7. ) THE contention of Shri Sanjay Sharma, learned counsel for appellant-is that the claim of plaintiff is that defendants are not entitled to realize the amount from the plaintiff which he took towards the loan from the Dhar District Cooperative central Bank on the insistence of the defendant no. 1-Society registered under the mp. " ( 7. ) THE contention of Shri Sanjay Sharma, learned counsel for appellant-is that the claim of plaintiff is that defendants are not entitled to realize the amount from the plaintiff which he took towards the loan from the Dhar District Cooperative central Bank on the insistence of the defendant no. 1-Society registered under the mp. Cooperative Societies Act, 1960 (in short, "the Act"), and therefore, not realizing the loan amount from the District Cooperative Central Bank would come under the ambit of any dispute touching the constitution, management or business as envisaged under section 64 of the Act and if that is the position, since there is a specific bar to bring a civil suit under section 82 of the Act the instant suit filed by the plaintiff is not maintainable. ( 8. ) IN this appeal despite respondents who are the legal representative of the plaintiff were served have not put their appearance through any counsel. ( 9. ) REGARDING substantial question of law : on going through the averments made in the plaint para 1 to 3 this Court finds that plaintiff on 29. 3. 1986 took a sum of Rs. 14,500/- towards loan from the defendants in order to install a motor pump in the well. Further it has been pleaded by the plaintiff that State of Madhya Pradesh has framed a scheme namely "madhya Pradesh Agriculture Debt Relief Scheme, 1990" in which the exemption up to the extent of Rs. 10,000/- has been permitted and the said scheme is also applicable to the plaintiff. It has also been pleaded that the benefit under the scheme would also include the debt which was taken by the plaintiff from defendants, and therefore, under the said scheme defendants are not entitled even to realize the amount of interest. Thus, a suit for declaration has been filed that defendants are not entitled to realize the amount of loan Rs. 14,800/- and interest thereupon from the plaintiff. A decree of injunction has also been sought that defendants be restrained from realizing the said amount from plaintiff. ( 10. Thus, a suit for declaration has been filed that defendants are not entitled to realize the amount of loan Rs. 14,800/- and interest thereupon from the plaintiff. A decree of injunction has also been sought that defendants be restrained from realizing the said amount from plaintiff. ( 10. ) IF the aforesaid pleadings of the plaintiff is tested on the touchstone and anvil of section 64 of the Act which speaks about the disputes, I am of the view that the pleadings may come within the term any dispute touching the constitution, management or business legislated in Section 64 of the Act. Thus, the claim of plaintiff would come under the term "disputes" as envisaged under Section 64 of the Act and if that is the position, the Registrar is the competent authority to resolve the said dispute. ( 11. ) SECTION 82 of the said Act speaks about the bar of jurisdiction of Courts and according to this section no civil or revenue Court shall have any jurisdiction in respect of any dispute, required to be referred to the Registrar or his nominee or board of nominees. For better understanding it would be condign to rewrite section 82 of the Act, which reads as under: 82 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 society or of bye-laws or of an amendment of a bye-law; (b) the removal of a committee and the management of the society after such removal; (c) any dispute, required to be referred to the Registrar or his nominee or board of nominees; (d) any matter concerning the winding up and the dissolution of a society. (2) While a society is being wound up, no suit or other legal proceedings relating to the business of such society shall be proceed 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. (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. " (emphasis supplied) On analyzing the aforesaid provision, I am of the view that the claim of plaintiff since it comes under the ambit and sweep of section 64 of the Act which relates to disputes and since there is a clear bar under section 82 of the said Act that the Civil Court was not having jurisdiction to try the suit, and therefore, learned first Appellate Court erred in law in decreeing the suit of plaintiff. The Supreme court in Keshav Narayan (Plaintiff) Vs Mandal Co-operative Marketing society and others, 1970 MPLJ. 770 has categorically held that the civil Courts jurisdiction to entertain the suit was barred, as the dispute was one "touching the business of the society". In that case plaintiff of that case filed a suit against a society for the price of wheat, pulses etc. supplied by him to the Society and in that situation the Supreme Court has held that in view of section 182 of the Act as the claim relates to the dispute-"touching the business of the society", the civil suit was held to be not maintainable. ( 12. ) FOR the reasons stated hereinabove, I am of the view that since there is a clear bar under section 82 of the Act the civil suit filed by the plaintiff is not maintainable. No doubt it is true that defendants did not appear in the Trial Court and did not file any written statement and the Trial Court proceeded ex-parte against them, but this would not be a ground to hold that civil Court is having jurisdiction. The Supreme Court in Kiran Singh and others Vs. Chaman Paswan and others, AIR 1954 SC 340 has categorically held that if there is inherent lack of jurisdiction the same can be raised at any time and at any stage even in collateral proceedings. In this view of the matter, I am of the view that the point which goes to the root of the matter and since there is inherent lack of jurisdiction, it can be raised in this second appeal. ( 13. ) FOR the reasons stated hereinabove this appeal is hereby allowed. In this view of the matter, I am of the view that the point which goes to the root of the matter and since there is inherent lack of jurisdiction, it can be raised in this second appeal. ( 13. ) FOR the reasons stated hereinabove this appeal is hereby allowed. The impugned judgment and decree passed by the learned First Appellate Court is hereby set aside and suit of the plaintiff is hereby dismissed as barred under the law. Looking to the facts and circumstances parties are hereby directed to bear their own costs of this appeal. Appeal allowed.