JUDGMENT : Heard Mr. Chandrashekhar Pandey, learned counsel for the petitioner, Mr. K.K. Bhatt, learned counsel for the O.P. No.1-State and Mr. Parth Jalan, learned counsel for the O.P. No.2- Deoghar Zila (Sahakari Kshetra) Rastriyakrit Bank Karmachari Bachat Evam Swablambi Sahkari Samiti Limited, Deoghar. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside order dated 20.02.2023 passed by learned Civil Judge (Sr. Division)-III, Deoghar in M.C.A. No. 250 of 2022 (arising out of Original Suit No. 27 of 2018) whereby the learned court has been pleased to reject the application filed under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure. 3. Mr. Chandrashekhar Pandey, learned counsel for the petitioner submits that the petitioner was the president of the respondent Co-operative Society namely (Sahakari Kshetra) Deoghar Zila Rastriyakrit Bank Karmachari Bachat Evam Swablambi Sahkari Samiti Limited, Deoghar, from 04.08.2004 to08.10.2017. He further submits that one of the secretary namely, Mr. Baliyase, in connivance with some of the directors got the petitioner removed from the post of President of Sahakari Samiti illegally without following the norms of the bye-laws of the said society. He then submits that one Sri Ashim Kumar Mukherjee was never elected as president in place of petitioner herein rather he was nominated by the conspirators in place of the petitioner and no intimation of removal of the petitioner was ever communicated and it was verbally informed that he has been removed from the post of president. He further submits that the petitioner was intent to have audit and inquiry of the Societies as he was apprehending that mischief will be played by the newly made committee member of the said society. He further submits that the petitioner was pursuing the audit account in view of that present Original Suit No. 27 of 2018 was instituted and it was instituted for recovery of Rs. 56,60,292/- along with interest against the petitioner. He then submits that on issuing the notice the petitioner has appeared and filed the written statement. He further submits that Nand Lal Baliyase is the Secretary of Sahakari Samiti and he has manipulated in getting the authorization of Director Council or by General Body to file the instant money suit in the civil court for recovery of loan amount to the tune of Rs.56,60,292/-. He further submits that Nand Lal Baliyase is the Secretary of Sahakari Samiti and he has manipulated in getting the authorization of Director Council or by General Body to file the instant money suit in the civil court for recovery of loan amount to the tune of Rs.56,60,292/-. He submits that the said has been done against Section 50 of the Jharkhand Self Supporting Cooperative Societies Act, 1996 (hereinafter referred the Act). He further submits that Secretary and President are defaulter of more than Rs.1.37 Crores for which petitioner was always making question while he was the President of the Society. In this background he submits that the petitioner herein filed a petition under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure praying therein to reject the plaint filed by the respondent-plaintiff and the learned court has been pleased to reject the same by impugned order dated20.02.2023. He further submits that in the light of Section 40 and 41 read with Section 50 of the said Act the same is barred. He further submits that the learned court has wrongly interpreted provisions of Sections 40, 41, 50 of the said Act in view of that the said order may kindly be set aside. He further submits that dispute in nature is coming within parameter of Section 40 of the said Act read with Section 41 of said Act. In view of that any proceeding with regard to dispute in question will lie before the tribunal constituted under the said Act. On these grounds, he submits that the impugned order may kindly be set aside. 4. Per contra Mr. Parth Jalan, learned counsel for the O.P. No.2 opposes the prayer and submits that learned court has rightly passed the order. According to him in the light of Section 40 read with section 41 of the Act dispute of this nature cannot be a subject matter before the learned tribunal under the said Act. He further submits that dispute is with regard to deficiency, loss or unprofitable outlay occasioned by his negligence or misconduct or of any such amount which ought to have been accounted but is not brought into account by a person can be subject matter of the tribunal and in view of that Section 50 of the Act is not coming into play as such Civil Court itself is having jurisdiction. He submits that the learned court has rightly passed the said order. He submits that removal is not disputed by the petitioner herein. 5. Learned counsel for the State-O.P. No.1 submits that Registrar is having only jurisdiction to decide the said dispute. 6. In view of above submissions of the learned counsel for the parties the court has gone through the materials on record including impugned order as well as the petition under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure. It is an admitted position that the petitioner was the president of the said Cooperative Society and subsequently he has been removed. It has been contended that there is no removal order and orally he has been ousted. There is no denial of that fact by the O.P. No.2. 7. Admittedly the suit was filed for recovery of Rs.56,60,292/- along with interest. The dispute is there and all the amount to be recovered from the petitioner in view of that it is crystal clear that touching of the business of the society. For ready reference Section 40 of the said Act is quoted hereinbelow:- “40. Settlement of disputes. (1) If any dispute arises touching the constitution, management or business of a Co-operative Society, and matters connected therewith or incidental thereto- (a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or a person claiming through a member, past member or deceased member and the Co-operative Society, its-board, director, office-bearer or liquidator, past or present, or (c) between the Co-operative Society or its board and any past board, director, office-bearer, or the nominee, heirs or legal representatives of any deceased director, deceased office-bearer of the Co-operative Society, or (d) between the Co-operative Society and any other Co-operative Society, or (e) between the promoters of a Co-operative Society and the Registrar, or a Co-operative Society and the Registrar, or (f) between a Co-operative Society and liquidator of another Co-operative Society or between the liquidators of two or more Co-operative Societies, Such disputes may be referred to the Co-operative Tribunal for decision: Provided that no dispute shall be referred under this section to the Co-operatin Tribunal unless the disputing parties exhausted all remedies that may be available in the bye-laws for the settlement of disputes. (2) Any dispute relating to elections held to a Co-operative Society may be referred to the Co-operative Tribunal for decision. (3) Any appeal against a decision of the Tribunal shall lie before the High Coun within sixty days of the date of order.” 8. In view of above provision, it transpires that any dispute arising out of constitution management or business of a Co-operative Society including its member and past member can be referred to the tribunal. For Section 41 of the said Act speaks of power of the tribunal to order of recovery. Section 50 of the said Act speaks as under:- “50. Bar of Jurisdiction of Court.-(1) Save as otherwise expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of any dispute required by Section 40 to be referred to the Co-operative Tribunal or recovery proceedings under Section 41 or dissolution under Sections 43 and 44. (2) While a Co-operative Society is in liquidation under Section 45, no suit or other legal proceedings shall be proceeded with or instituted against the liquidator as much or against the Co-operative Society or any member thereof on any matter touching the affairs of the Co-operative Society, except by leave of the Registrar and subject to such terms as he may impose.” 9. In the light of above section it is crystal clear that jurisdiction of Civil Court is barred with regard to dispute which is coming within the scope of section 40 and Section 41 of the said Act. 10. Admittedly, transaction as alleged was arising out of business of the said society and the petitioner was a member of the said Society. Section 40 of the said Act clearly suggests that any dispute arising out of touching the constitution management or business of a Co-operative Society between the member and past member will be referred to the Tribunal and the powers of the tribunal is prescribed in Section 41 of the said Act. Even it is accepted for the sake of argument that it was not sufficient that there should be a dispute touching the business of the society and what is further required is that dispute must be between society and its member. Section 40 of the said Act speaks that any dispute between the member and the past member can be subject matter of the tribunal only. 11. Section 40 of the said Act speaks that any dispute between the member and the past member can be subject matter of the tribunal only. 11. In the light of above, the dispute concerned the business of the registered society as discussed hereinabove then the dispute with regard to the same is barred under section 50 of the said Act and tribunal constituted under the said Act is only having the power. 12. Admittedly, the society business was to grant loan to the employees of the nationalized bank and in the light of that allegations are made that amount has been taken by the petitioner herein and in view of that it relates to the business of the registered society. 13. In this background petition filed under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure has been filed by the petitioner which has been rejected by the learned court. 14. For deciding petition under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure the Court is not required to look into any evidence and only the law is required to be considered in the light averment made in the said petition. 15. Only averments are required to be read of the plaint and any addition and subtraction are not the requirement of law and even the evidence is not required to look into. Reference may be made to the case of “Kamla and others Vs. K.T. Eshwara Sa and Others” reported in (2008) 4 SCC 204 wherein the Hon’ble Supreme Court in paras 15 and 16 has held as under:- “15. Order VII, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one. Order XIV, Rule 2 is another. 16. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. All issues shall not be the subject matter of an order under the said provision. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject matter thereof, the application for registration of plaint should be entertained." 16. Admittedly what has been discussed hereinabove the suit is barred under Section 50 of the said Act as the dispute is arising between members and past members which relates to the business of cooperative society. 17. In this background the Court finds that the Civil Court is having no jurisdiction to decide the dispute and only the tribunal constituted under the said Act can decide the said dispute. 17. In this background the Court finds that the Civil Court is having no jurisdiction to decide the dispute and only the tribunal constituted under the said Act can decide the said dispute. As such the impugned order dated 20.02.2023 passed by learned Civil Judge (Sr. Division)-III, Deoghar in M.C.A. No. 250 of 2022 (arising out of Original Suit No. 27 of 2018) is set aside and the petition filed by the petitioner under Order VII, Rule 11, read with Section 151 of the Code of Civil Procedure is hereby allowed. Consequently, Original Suit No. 27 of 2018 is dismissed as it is barred by law. 18. In view of above it is open to the O.P. No.2, if so advised, may move before the cooperative Tribunal in the light of constitution made under section 41 of the said Act. 19. This petition is allowed in above terms and disposed of. Pending I.A, if any, stands disposed of.