JUDGMENT : 1. In this petition under Article 226/227 of the Constitution of India, the petitioner has challenged order dated 21.9.2012 passed by learned Board of Nominees below application Exh. 16 in Lavad Suit No. 837 of 2010 whereby learned Board of Nominees rejected the said application filed by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure (“the Code” for short). 2. Copy of the Lavad Suit No. 837 of 2010 before the Board of Nominees filed by respondent NO.1 society is annexed at annexure-A to the petition. The said suit is filed for recovery of Rs.5,88,000.00 against the present petitioner and another person (defendant No.1) stating that the petitioner and defendant No.1 were serving as clerk and head clerk respectively in the society and they were responsible to obtain voucher from the customers, get it compared with the signatures on the challan, verify the balance in the accounts and to hand over the same to the cashier after making entry of credit/debit in the account and to maintain all type of balance registers, to make posting in the accounts and such other works as may be entrusted by the manager. It is further stated that during the audit, the petitioner and defendant No.1 were found to have misappropriated the amounts of the society for which criminal complaint is filed against them in the Court of the learned Judicial Magistrate, First Class at Dabhoi. 3. In the said suit, petitioner filed application at Exh. 16 titling the same as an application under Order 7, Rule 11-A and 11-D of the Code praying to reject the suit on the ground that the suit is premature and there is no cause of action for filing the suit till it is not proved in the criminal case that the petitioner has committed an offence of misappropriation. Thereafter, the petitioner filed written statement at Exh. 22 on 28.4.2012. 4. The said application of the petitioner was opposed by respondent no.1 society on the ground that the society has filed the suit on the basis of the audit of the society and the application for rejection of the suit is only to delay the suit. Respondent No.1 also contended that the provisions of Order 7, Rule 11 of the Code would not be attracted and, therefore, the application Exh. 16 was required to be rejected. 5. Respondent No.1 also contended that the provisions of Order 7, Rule 11 of the Code would not be attracted and, therefore, the application Exh. 16 was required to be rejected. 5. The learned Board of Nominees came to the conclusion that though the criminal case was yet to be decided, still the civil dispute could be brought before the Board of Nominees. Learned Board of Nominees also recorded that there was no good reason to take a view that the provisions of Order 7, Rule 11 of the Code will be attracted. Learned Board of Nominees accordingly rejected the application Exh. 16, as stated above. 6. I have heard the learned advocate Mr. Majmudar for the petitioner. Mr. Majmudar submitted that the main ground on which the suit for recovery of Rs.5,88,000.00 was filed against the petitioner and other defendants is that the petitioner and other defendants misappropriated the amount of respondent no.1 society and in respect of such misappropriation, the society has filed criminal complaint. Mr. Majmudar submitted that so long as it is not decided by the court in the criminal proceedings filed against the petitioner that the petitioner has committed an act of misappropriation, respondent No.1 has no cause of action to file the suit for recovery of the above amount. Mr. Majmudar therefore submitted that the Board of Nominees has gravely erred in rejecting the application filed by the petitioner under Order 7, Rule 11 of the Code. Mr. Majmudar submitted that the learned Board of Nominees has committed serious error in holding that the provisions of Order 7, Rule 11 of the Code are not attracted. Mr. Majmudar submitted that though the provisions of the Code will not be applicable to the proceedings of the suit filed under the provisions of the Cooperative Societies Act, 1961 (“the Act” for short) stricto senso, still the proceedings before the Board of Nominees are governed by the procedure analogous to the provisions of the Code. He submitted that the proceedings of Lavad Suit are to be decided on the principles of justice, equity and good conscience as provided in the Gujarat Cooperative Societies Rules, 1965 (‘the Rules’ for short) and same would certainly include the rejection of the plaint at the threshold if the suit is found to be premature and not disclosing the cause of action. In support of his submissions, Mr. In support of his submissions, Mr. Majmudar has relied on the decisions of this Court in the case of Porbandar Commercial Co Operative Bank Limited versus Bhanji Lavji reported in 1985 (1) GLR page 49 and in the case of Ruti Rushi Modi wd/o Rushi Sherarji Modi Through POA versus Surat Peoples Co Op Bank Ltd. (Special Civil Application No. 6145 of 2012 decided on June 11, 2012) reported in 2012 JX (Guj) 379 : 2012 GLHEL HC 227117. 7. Having heard the learned advocates for the parties and having perused the copy of the suit plaint with the application filed by the petitioner for rejection of the suit, it appears that the application at Exh. 16 is titled as an application under Order 7, Rule 11A and 11D of the Code for rejection of the suit. It further appears that the petitioner has resorted to the provision of Order 7, Rule 11 of the Code because there is no specific provision for rejection of plaint either in the Act or the Rules framed thereunder. The question therefore would be whether the provisions of Order 7 Rule 11 of the Code are applicable to the proceedings of Lavad Suit filed under the provisions of the Act. 8. For the above purpose, some provisions of the Act and the Rules applicable for deciding the dispute under Section 96 of the Act are required to be referred. 9. Section 97 of the Act provides for Limitation. Sub-sections (2) and (3) thereof read as under:- “(2) The period of limitation in the case of any dispute other than those mentioned in sub-sect90j (1) which are required to be referred to the Registrar under section 96 shall be regulated by the provisions of the Indian Limitation Act, 1908 (IX of 1908), as if the dispute were a suit, and the Registrar a Civil Court. (3) Notwithstanding anything contained in sub-section (1) and (2), the Registrar may admit a dispute after the expiry of the period of limitation if the applicant satisfies him that he had sufficient cause for not referring the dispute within such period, and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation had expired.” 10. Section 98 of the Act provides for powers of Registrar to refer the dispute to the Board of Nominee, to withdraw any dispute from the Board of Board and to suspend the proceedings before the Board of Nominee. 11. Section 99 of the Act provides for settlement of dispute and power of Registrar, his nominee or Board of Nominee, which reads as under:- “99. Procedure for settlement of disputes and power of Registrar, his nominee or board of nominees: (1) The Registrar, or his nominee or board of nominees, hearing a dispute under section 98 shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them by the same means and as far as possible in the same manner as provided in the case of a Civil Court by the Code of Civil Procedure, 1908 (V of 1908). (2) Except where a dispute involves complicated question of law or fact, no legal practitioner in his capacity as a legal practitioner or as person holding a power of attorney shall be permitted to appear on behalf of any party at the hearing of a dispute. (3) (a) If the Registrar or his nominee or board of nominees is satisfied that a person, whether he be a member of the society or not, has acquired any interest in the property of a person who is a party to a dispute, he may order that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Registrar or his nominee of board of nominees shall be binding on the party so joined, in the same manner as if he were an original party to the dispute. (b) Where a dispute has been instituted, in the name of the wrong person or where all the defendants have been not included, the Registrar or his nominee or board of nominees may, at any stage of the hearing of the dispute if satisfied that the mistake was bona fide, order any other person to be substituted or added as a plaintiff or a defendant, upon such terms as he thinks just. (c) The Registrar, his nominee or board of nominees may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Registrar, his nominee or board of nominees, as the case may be, to be just, order that the name of any party improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Registrar, his nominee or board of nominees as the case may, may be necessary in order to enable the Registrar, his nominee or board of nominees effectually and completely to adjudicate upon and settle all the questions involved in the dispute, be added. (d) Any person who is a party to the dispute and entitled to more than one relief in respect of the same cause of action may claim all or any of such reliefs; but if he omits to claim all such reliefs, he shall not forward claim for any relief so omitted, except with the leave of the Registrar, his nominee or board of nominees. (4) Notwithstanding anything contained in sub-section (1), (2) and (3), the following disputes or class of disputes, if the plaintiff so desires, shall be decided summarily by the Registrar, or his nominee or board of nominees, in such manner as may be prescribed, namely: (a) any dispute for recovery of debt upon promissory note, hundi, bill of exchange or bond, with or without interest, whether agreed upon under such instrument or under the bye-laws; (b) any dispute for recovery of a fixed sum of money or in the nature of debt, with or without interest, arising on a written contract; (c) any dispute for recovery of price of goods sold and delivered, where the rate, quality and quantity are admitted in writing. (d) any dispute for recovery of dues payable by a member of a housing society towards contribution for construction of the house, or any dispute in respect of repayment of any loan, interest on loan, ground rent, local authority taxes, sinking fund, water charges, electrical charges, maintenance and upkeep charges or charges for other services rendered by the society and the interest on such arrears, payable under the written agreement or under the bye-laws. (5)(a) The defendant shall not be entitled to defend the dispute unless he obtains leave from the Registrar, his nominee or, as the case may be, the board of nominees, in such manner as may be prescribed. (b) The Registrar, his nominee or board of nominees may grant the leave under clause (a) on such conditions, as he thinks fit. (c) The Registrar, his nominee or board of nominees shall not refuse the leave to defend the dispute unless he is satisfied that the facts disclosed by the defendant do not indicate that he has substantial defence to raise or that the defence intended to be put by him is frivolous or vexatious. (d) Whether the defendant fails to obtain such leave or fails to appear or defend the dispute in pursuance of such leave, the averments made in the plaint and documents produced therewith shall be deemed to have been admitted by the defendant : Provided that the Registrar, his nominee or board of nominees in his discretion requires any fact so admitted to be proved otherwise than by such admission. (e) Where the conditions on which leave to defend is granted are not complied with the defendant, the Registrar, his nominee or, as the case may be, board of nominees may pass an award against him, as if he has not been granted such leave. (6) The Registrar, his nominee or, as the case may be, board of nominees shall under special circumstances set aside the award passed by him and if necessary stay or set-aside execution, and may grant leave to the defendant to appear and defend the disputes, if it seems reasonable so to do, and on such terms as he thinks fit.” 12. Section 100 of the Act provides for attachment before award, which reads as under: “100. Section 100 of the Act provides for attachment before award, which reads as under: “100. Attachment before award: (1) Where a dispute has been referred to the Registrar or his nominee or board of nominees under section 98 or under section 110, or where the Registrar or the person authorized under section 93 hears a person against whom charges are framed under that section, the Registrar or his nominee or board of nominees, or as the case may be, the person so authorized under section 93 if satisfied on inquiry or otherwise that a party to such dispute or against whom proceedings are pending under section 93 with intent to defeat, delay or obstruct the execution of any award or the carrying out of any order that may be made:- (a) is about to dispose of whole or any part of his property, or (b) is about to remove the whole or any part of his property from the jurisdiction of the Registrar, may unless adequate security is furnished, direct conditional attachment of the said property and such attachment shall have the same effect as if made by a competent Civil Court. (2) Where a direction to attach property is used under subsection (1) the Registrar, his nominee or board of nominees or the person authorized, under section 93 shall issue a notice calling upon the person whose property is so attached to furnish such security within such period as may be specified in the notice, and if the person fails to provide the security so demanded, the Registrar or his nominee or board of nominees or, as the case may be, the person authorized under section 93 may confirm the order and, after the decision in the dispute or the completion of the proceedings referred to in sub-section (1) may direct the disposal of the property so attached towards the claim if awarded. (3) Attachment made under this section shall not affect the rights subsisting prior to the attachment of the property, of persons not parties to the proceedings in connection with which the attachment is made, or bar any person holding a decree prior to such attachment against the person whose property is so attached from applying for the sale of the property under attachment in execution of such decree.” 13. Section 103 of the Act provides for procedure as to how, money is to be recovered on the basis of the order passed by the Registrar, Board of Nominee or the Tribunal as well as by the State Government, which reads as under:- “103. Money how recovered: Every order passed by the Registrar or a person authorized by him under section 93, or by the Registrar, his nominee or board of nominee under section 100 of 101, every order passed in appeal under section 102, every order passed by a liquidator under section 100, every order passed by the State Government in appeal against orders passed under section 110, and every order passed in revision under section 155, shall, if not carried out, - (a) on a certificate signed by the Registrar or a Liquidator, be deemed to be a decree of a Civil Court, as defined in clause (2) of section 2 of the Code of Civil Procedure, 1908 and shall, be executed in the same manner as a decree of such Court, or (b) be executed according to the provisions of the Land Revenue Code and the rules thereunder for the time being in force for the recovery of arrears of land revenue; Provided that, any application for the recovery in such manner of any such sum shall be made to the Collector, and shall be accompanied by a certificate signed by the Registrar, or by any Assistance Registrar to whom the said power has been delegated by the Registrar, Such application shall be made within twelve years from the date fixed in the order and if no such date is fixed, from the date of the order.” The above are the relevant provisions of the Act, which could be considered for deciding the above question. 14. Rules 41, 43 and 44 of the Rules, which are relevant for deciding the above question, are reproduced hereunder: “41. Procedure of hearing and decision: (1) The adjudicating authority shall record a brief note in English or in Gujarati language of the evidence of the parties and witnesses who attend and upon the evidence so recorded and upon consideration of any documentary evidence produced by either side, a decision shall be given in accordance with justice, equity and good conscience and it shall be reduced to writing. Such a decision shall be given to the parties. Such a decision shall be given to the parties. (2) If any of the parties duly summoned or informed to attend, fails to appear, the dispute may be dicision in accordance with the relevant provisions of Order 9 of the Code of Civil Procedure, 1908. (3) Where the adjudicating authority is a board of nominees, consisting of the board of nominee of two nominees and if their opinions differ regarding the decision, the adjudicating authority shall return the case to the Registrar with its notes of dissent and thereupon the dispute may be decided by the Registrar himself or the case may be forwarded to a fresh board of three nominees for decision. (4) The decision shall be communicated to the parties by: (a) pronouncement of the award; or (b) registered post to any party which may be absent on the date if due notice of the decision is not given to such party, (c) Ordinary post with UPC to any party which may be absent on the date if due notice of the date of decision is given to such party. (5) After the decision of the case, if the adjudicating authority is a nominee or the board of nominee it shall return all the case papers to the Registrar.” “43. Summonses, notices and the fixing of dates, place, etc.: (1) In proceedings for the settlement of disputes an adjudicating authority shall fix the date, hour and the place for hearing the dispute. (2) The adjudicating authority may issue summonses or notices at least 15 days before the date fixed for hearing of the dispute requiring: (i) the attendance of the parties concerned and of witness; and (ii) the production of all books and documents relating to the matter in dispute. (3) (i) Notices or summons issued by the adjudicating authority may be served personally on the party or its agent or through the Mamlatdar, Mahalkari, Talati or any officer of the Panchayat, or any employees of the Co-operation Department or of a federal society or through the Chairman or Secretary of society or by registered post with acknowledgment due. (3) (i) Notices or summons issued by the adjudicating authority may be served personally on the party or its agent or through the Mamlatdar, Mahalkari, Talati or any officer of the Panchayat, or any employees of the Co-operation Department or of a federal society or through the Chairman or Secretary of society or by registered post with acknowledgment due. (ii) The serving officer shall, in all cases in which summons or notice has been served, endorse, or annex or cause to be endorsed or annexed on or to the original summons or notice send a return stating the time when, and the manner in which, the summons or notice was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery of tender of the summons or the notice. (iii) The person issuing the summons or notice may examine the serving officer on oath or cause him to be so examined by the Mamlatdar or Mahalkari through whom it is served and make such further inquiry in the matter as he thinks fit; and shall either declare that the summons or notice has been duly served or order it to be served in such manner as he thinks fit. (iv) If the summons or notice is issued by the adjudicating authority under section 99 shall, if sent for service to a Mamlatdar or a Mahalkari, be served by such officer. (v) The mode of serving of summonses or notices under section 86 and 94 or to make an inspection under section 87 or by the auditor acting under section 84 by the liquidator appointed under section 108 and acting under section 108 shall be the same as provided in the forgoing of this sub-rule. (vi) If the party or the witness evades service, of summons or notice or refuses to accept service, or whereabouts of the party or witness are not known, the summons or notice may be served by affixing a copy thereof at the last known residence of the party or witness and if such address is not known the summons or notice may be affixed at the office of the panchayat of a gram or nagar or municipal office of the town or city in which such party or witness is known to have last resided or by publication of the same in any local newspaper.” “44. Procedure for execution of awards : (1) Every order or award passed by the adjudicating authority under section 100 or 101 shall after the expiry of the period for appeal under section 102, be forwarded by the Registrar to the society or to the party concerned with instruction that it should be executed forthwith according to the provisions of section 103. (2) If the amount due under the award is not forthwith recovered or the order is not carried out, the award or as the case may be, the order shall be forwarded by the society or the party concerned to the Registrar with an application for execution along with all other information required by the Registrar for the issue of certificate under section 103. The application shall state whether he desires to execute the award or as the case may be order by the civil Court or through the Collector as provided under section 103 or through the Registrar as provided under section 159. (3) Even order passed in appeal under section 102 shall also be executed in the manner prescribed under sub-rule (2). (4) Recovery of execution when property is not sold. When recovery is made under section 103 in execution of any order referred to in the said section {or on the certificates issued under section 105 and 139} and property is not sold in such execution, the Registrar may order the expenses of such recovery to be paid by the party in default according to a scale laid down by him not exceeding in aggregate 10 per cant of the amount of the dues.” 15. What emerges from the above provisions of the Act and the Rules could be summarized as under:- (1) Though sub-section (2) of Section 97 provides that period of limitation in case of any dispute under Section 96 shall be regulated by the provisions of the Indian Limitation Act, 1908 as if the dispute were a suit and the Registrar a Civil Court, sub-section (3) gives discretion to the Registrar to admit a dispute after expiry of the period of limitation, if the applicant satisfies him that he has sufficient cause for not referring the dispute within such period and the dispute so admitted shall be a dispute which shall not be barred on the ground that period of limitation had expired. (2) Section 99 of the Act inter alia provides for hearing the dispute by Registrar or Board of Nominees in the manner prescribed. The issuance of summons and attendance of the witnesses including the parties are to be governed as far as possible in the same manner as provided in the case of a Civil Court by ‘the Code’. The other procedure provided therein is to permit the legal practitioner or power of attorney to appear on behalf of the party, to join the party who is found to have acquired any interest in the property of a person who is a party to the dispute, for substitution of plaintiff or defendant, for striking out the name of any party or joining any party whose presence is necessary before the Registrar or Board of Nominees for effectually and completely adjudicating and settling all questions involved in the dispute. It also provides that a person who is a party to the dispute and entitled to more than one relief and omits to claim all the reliefs, the Registrar may refuse to forward his claim so omitted. Sub-sections (4) and (5) thereof provides for procedure for summary suit for recovery of money alike provision of Order 37 of the Code. (3) Section 100 of the Act provides for attachment before award and such attachment is stated to have the same effect as if made by the competent Civil Court. (4) Section 103 of the Act provides for procedure for recovery of the money on the basis of the order passed by the Registrar, his nominee, Board of Nominees, the Tribunal, the Liquidator. 16. Rule 41 of the Rules prescribes the manner and method of deciding the Lavad suit. As per the said provision, the adjudicating authority is required to take decision on the basis of the evidence recorded and considering the documentary evidence produced by either of the party in accordance with justice, equity and good conscience. If any of the parties duly summoned fails to appear before the adjudicating authority, the dispute is required to be decided in accordance with the relevant provisions of Order IX of the Code of Civil Procedure, 1908. 16.1. Rule 43 of the Rules provides for service of summons and attendance of the parties. 16.2. Rule 44 lays down the procedure for execution of the award. 16.1. Rule 43 of the Rules provides for service of summons and attendance of the parties. 16.2. Rule 44 lays down the procedure for execution of the award. As per the provisions of this Rule, it is left to the party in whose favour award/ order is made either to execute the same by the Civil Court or through the Collector or through the Registrar. 17. From the above, it clearly appears that the Act as well as the Rules have provided for a set of procedure to be followed for deciding the dispute by the Board of Nominee. At whatever stage of the proceedings of the dispute before the Registrar, his nominee or Board of Nominee, the provision of the Code or the procedure analogous to the provision of the Code is intended to be followed, it is so specifically provided in the Act or in the Rules. But, nowhere it is provided that the dispute before the Registrar, his nominee or Board of Nominees shall be either governed by the Code or shall be decided as per the provisions of the Code. 18. Unlike the Code of Civil procedure, making provision for procedure to be followed at different stages right from presentation of the plaint till the judgment and decree is passed in the suit, the Act and the Rules have laid down set of procedure to decide the dispute on the basis of the evidence available on record and in accordance with justice, equity and good conscience. There is no provision for rejection of suit. Dispute once admitted by the Registrar, his nominee, or Board of Nominees is to be adjudicated upon till taking of the final decision as per the procedure provided under the Act and the Rules. 19. There is also no provision in the Code making the Code applicable to the proceedings of the dispute filed under the provisions of the Act. Therefore, since the Act and the Rules provide for set of procedure to be followed for deciding the dispute by the Registrar and Board of Nominees, the direct application of the provisions of the Code has to be ruled out except where any provision of the Code is specifically made applicable. 20. The decisions relied upon by learned advocate Mr.Majmudar do not lay down that the provisions of the Code are applicable to the proceedings of the dispute under the Act. 20. The decisions relied upon by learned advocate Mr.Majmudar do not lay down that the provisions of the Code are applicable to the proceedings of the dispute under the Act. In the case of Porbandar Commercial Co-op. Bank (supra), the question was whether to what extent, the partner, who signed the surety bond could bind the other parters and whether all partners of the firm could be sued by following the procedure of Order XXX of the Code. In that context, this Court has observed as under: “.... It may be noted that strict and rigorous provisions of C.P. Code do not apply to the trial of a dispute under Sec.96 of the Act. It has to be decided according to justice, euqity and fair play. If this was a fullfledged civil suit tried by a regular civil court Mr. Nanavati could have urged with emphasis that by merely suing partners under O.XXX R.1. through the name of the firm no personal decree can be passed against the concerned partners unless he was also joined in his personal capacity as a defendant. It is also true that in a suit governed by O.XXX Code of Civil Procedure each partner aping individually can put in a separate written statement but each written statement is the written statement of the firm. It is only when a person is sued personally along with the firm that he may put in a personal defence. Still however the fact cannot be lost sign of that the present proceedings are to be decided on principle of natural justice, equity and good conscience and not strictly according to the rigorous procedural provisions of the Code of Civil Procedure....” The Court in the said case has not held that the Code of Civil Procedure applies to the dispute to be decided under the Act. In the case of Ruti Rushi Modi (supra), the Court was not called upon to decide as to whether the provisions of Order VII Rule 11 of the Code could be applied to the proceedings of the dispute under the Act. Therefore, both the decisions would have no application for deciding the above question. 21. In view of the above, I am of the view that the provisions of Order VII Rule 11 of the Code has no application to the proceedings of the dispute under the Act. Therefore, both the decisions would have no application for deciding the above question. 21. In view of the above, I am of the view that the provisions of Order VII Rule 11 of the Code has no application to the proceedings of the dispute under the Act. Therefore, application under Order VII Rule 11 of the Code at Exh.16 preferred by the petitioner is not maintainable. 22. Having taken the above view, though the Court is not required to decide the petition and the application Exh.16 on merits, but even if the same were to be examined on merits, then also the Court finds no error in the impugned order for following reasons. 22.1. The petitioner wanted the suit to be rejected on the ground that the suit was premature and no cause of action could be said to have arisen for filing such suit till the petitioner was held guilty in the criminal proceedings. However, from the contents of the suit plaint, it clearly appears that the suit is not filed simply on the basis of the criminal complaint. In the suit, averments are made about the irregularities committed by the petitioner and other officers and the suit is filed pursuant to the irregularities found in audit carried out of the accounts and other documents of the society. The suit is thus not based only on criminal complaint. After the irregularities were noticed in the Audit of the society, the cause had arisen for the society to file the suit against the petitioner. The Board of Nominee, therefore, has not committed any error in holding that the suit was not premature or without cause of action. Therefore, even on merits, no interference is called for in the order passed by the Board of Nominee. 23. For the reasons stated above, the petition is dismissed. No costs. Petition dismissed.