Saroj Kapur vs New Rajdhani Cooperative House ...
1991 Latest Caselaw 286 Del

JUDGMENT

P.K. Bahri, J.

(1) In this suit seeking relief of declaration that the plaintiff is a member of defendant No. 1, New Rajdhani cooperative House Building Society and is entiled to allotment of a plot of land and for grant of mandatory injunction requiring the defendants to allow a plot of land to the plaintiff, appropriate to her membership, certain preliminary objections were raised to the maintainability of teh suit, which have been reduced into three preliminary issues as follows: "1.Is the present suit maintainable in view of the provisions of Section 60 of the Delhi Co-operative Societies Act? Opd 2. Whether the present suit can be filed without giving notice in terms of Section 90 of teh Delhi Cooperative Societies Act? Opd 3. What is the effect of the decision of this court in writ petition No. 1533/85 dated 30-3-1986 between the parties?"

(2) The case of the plaintiff, in brief, is that the plaintiff became member of defendant No. 1 society and was entitled to have the allotment of a plot from defendant No. 1 on the basis of her membership. One of the requirements for becoming a laws of defendant no. 1 society as is laid down in the Bye-laws of defendant No. 1 society is that a person must be a resident of Delhi. As the plaintiff was not being allotted any plot by defendant No. 1 as not being the member of defendant No. 1 society on the ground that the plaintiff did not fulfill the pre-requisite condition of being resident of Delhi for becoming a member of defendant No. 1 society. The plaintiff filed a writ petition, which was disposed of with the direction that the Registrar of Cooperative Societies should decided this question. The Registrar vide his order dated December 22, 1986 after giving hearing to the parties, gave a decision that the plaintiff was not a resident of Delhi at the relevant time and thus could not be treated as member of defendant No. 1 society. The plaintiff thus instituted the present suit for the aforesaid reliefs.

(3) The short question which arises for decision is whether the suit is barred under Section 60 of the Delhi Commissioner of Income Tax Societies Act, 1972. Section 60 of the Act contemplates reference of disputes touching the constitution, management or business of cooperative society for arbitration by the Registrar, if such disputes arise inter alia between a member and the society. Section 60 also lays down that no court shall have Jurisdiction to entertain any suit or proceedings in respect of such disputes.

(4) Learned counsel for the plaintiff has vehemently argued that the dispute as to whether a particular person is or is not a member of a society, is not covered by the provisions of Section 60 of the said Act and thus civil court's jurisdiction to try the suit is not barred. He has argued that as question whether the plaintiff is or is not a member, is yet to be decided, it cannot be said that any dispute has arisen between a member of the society and the society which could be referred for decision to the Registrar.

(5) The very perusal of Section 60 of the Act, in my view, supports the contention of learned counsel for the plaintiff. It is only if any dispute arises between a member, past member or a person claiming through a member, past member and or deceased member and the society that such a dispute could be referred for arbitration. It is a pre-requisite for invoking this Section 60 that a person must be a member or a past member or a person claiming through a member, past member and/or deceased member before any dispute could be referred for arbitration. In the present case it is yet to be legally decided whether the plaintiff is a member of defendant No. I society or not. So this dispute whether plaintiff is a member of defendant No. 1 Society, is not a dispute between a member and the society. Hence, Section 60 would not bar the jurisdiction of this Court to decide this particular dispute. No judgment of any Indian Court has been brought to my notice. However, counsel for, the plaintiff has referred to certain foreign judgments, which do support the interpretation as being now put to Section 60 of the Act by me. The first judgment is L.R. 10. C.C.P. 679 Prentice v. London, Longhurst And OTHERS. While interpreting similar provisions of Benefit Building Society, it was held that to bring a dispute within the arbitration clause of the rules of a benefit building society, it must be one which arise between the trustees and the party claiming as a member of the society. In the said case also, the trustees had denied the right of a plaintiff to be a member of the society. It was held. that as the trustees denied the right of the plaintiff to be a member of the society, they were estopped from saying that the dispute was a dispute between them and him as a member, within the rule.

(6) Then reference is made to 1892(2) Q.B. 225, Willis v. Wells And OTHERS. Section 22 of the Friendly Societies Act, 1875 provided that every dispute between a member or a person claiming through a member or under the rules of a registered society, and the society or an officer thereof shall be decided in a manner directed by the rules of the society. It was held that the Act and the Rules applied only to disputes arising between members and the society and did not include a dispute as to whether a person who had been expelled from the society, was entitled to be re-instated and, therefore, the court had jurisdiction to grant an injunction.

(7) Similar view was laid in 1948(2) King's Bench 53 Judson v. Ellesmere Port EX-SERVICEMEN'S Club A support can be obtained also from what has been held in Ramendra Nath, v. Balurghat C. C. Bank . Rule 22 of the Cooperative Societies Act in Bengal required that any dispute touching the business of a society between the member and the Committee, was to be referred for decision to the Registrar. It was held that the said clause would not include the dispute as to whether a person is or is not a share holder of the said society. So, in view of the above discussion, I hold that Section 60 does not bar the present suit. Issue No. l is decided in favor of the plaintiff. 8. Issue No. 2

(8) It is then contended that a notice under Section 90 of the Delhi Cooperative Societies Act, 1972 ought to have been served before institution of the suit and as no such notice has been served, the suit is not maintainable. Section 90 contemplates that "no suit shall be instituted against a cooperative society. . . . until the expiration of three months next after notice in writing has been delivered to the Registrar" in respect of any act touching the business of a society.

(9) Now the short question which arises for decision is whether the plaintiff is or is not a member of defendant No. 1 society, touches the business of the society or not. Counsel for the plaintiff has cited Cooperative Central Bank Ltd. v. Addl. Industrial Tribunal, Andhra Pradesh. Hyderabad. wherein the question arose whether the dispute relating to alteration of conditions of service of the employees of the cooperative society could be considered to be a dispute touching the business of the society. The Supreme Court held that such. dispute had not touched the business of the society. It was held that "since the word 'business' is equated with actual trading or commercial or other similar business activity of the society and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects such as laying down the conditions of service of its employees can bo said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society." it was also held that only those disputes which could be resolved by the Registrar under Section 61 of the Andhra Pradesh Co-operative Societies Act, could be the disputes touching the business of a society.

(10) Reference is then made to Bhandara Zilla Sahakari Shetkari Sherki Kharedi Vikri Samiti Ltd.v. Damodar & others 1985 Cooperative Law Journal at page 9. In the said case it was observed that it was not the business of the society to parchase any land. The dispute arose regarding the purchase of land. It was held by the Bombay High Court that the dispute is liable to be deckled by a civil court. Another case Maharashtra Cooperative Housing Finance Society Ltd. v. V. S. Loni and another, 1985 Cooperative Law Journal 13 pertained to a dispute regarding dismissal of the petitioner and his claim for re-instatement and it was held that such a dispute does not touch the business of the society and can be decided by a civil court.

(11) In R. P. Dube v. Lt. Governor and others it was held that the word 'business' would mean what the society/carries on whether of trade, commerce or industry. Counsel for the plaintiff also cited Hara Dayal Nag v. Chandpur Central Cooperative Bank Ltd. wherein it was held that a suit for declaration that the constitution of the board of management of cooperative society is illegal is not a dispute between the member and the Committee touching the business of a society. Although these cases are based on different facts, however, the principle enunciated is that only where .the acts of the society touching its business are challenged, a prior notice is required to be given to the society. The question as to whether a particular person is or is not a member of a society, does not touch the business of a society.

(12) Hence, no notice under Section 90 of the Act was required to be given in such a case. I hold this issue also in favor of the plaintiff.

(13) Issue No. 3 I have seen the file of Writ Petition No. 1553 of 1985. the plaintiff had filed the writ petition alleging the same facts and seeking the same reliefs as are sought in the suit After show cause notice was given to the Registrar, Cooperative Societies and also to the House Building Cooperative Society and after hearing the counsel for the parties, the Division Bench made the order on March 31, 1986 disposing of the writ petition. It was mentioned in the order that one of the important conditions prescribed for the membership of the. society was that the applicant has to be a resident of Delhi. A dispute had arisen whether the petitioner was entitled to the membership of the society. The contention of the Cooperative Society was that the petitioner was not at the relevant time a resident of Delhi and thus was not entitled to membership of the Society. The petitioner, however, had taken the plea that she was to be deemed to be a resident of Delhi at the relevant time and was rightly made member of tide society. After reciting the plea of the parties, the Division Bench made the following observations : "THUS the only controversy is whether the petitioner was a resident of Delhi at the relevant time. The Registrar in his reply has stated that the petitioner has been asked to furnish the requisite proof regarding her residence at Delhi at the time of her enrolment as a member in the society and as soon as she furnishes the required proof, he shall decide the case. We direct that the Registrar shall after hearing both the parties decide the case. This he shall do within two months. The parties shall appear before the Registrar on 14th April, 1986. The petitioner can put forward all the pleas that may be open to her to prove her residence at Delhi at the relevant time before the Registrar. Until the case of the petitioner is decided by the Registrar, the society shall keep one plot reserved. The petition is disposed of."

(14) Now the effect of this decision has to be determined as to whether this decision of the Division Bench bars the present suit or not. Learned counsel for the defendant has vehemently argued that the Division Bench had referred the matter to the Registrar for giving his decision on the dispute arising between the plaintiff and the cooperative society. So, it must be held that the Division Bench has impliedly interpreted Section 60 of the Delhi Cooperative Societies Act as applicable to the facts of the present case and thus the civil court has no Jurisdiction to try the suit and the Registrar was the only competent person under Section 60 of the said Act to decide that particular dispute.

(15) Learned counsel for the plaintiff on the other hand has argued that the Division Bench has not given any interpretation to Section 60 of the said Act and thus this decision does not operate as a resjudicata so as to bar the filing of the present suit.

(16) It is not possible to countenance the contention of learned counsel for the plaintiff. In case the Registrar had no jurisdiction to decide the dispute arising between the plaintiff and the cooperative society, there could be no occasion for the Division Bench to have require the Registrar to decide that dispute. The implication of the order of the Division Bench is that the Division Bench was of the opinion that the dispute arising between the plaintiff and the cooperative society was covered by the provisions of Section 60' of the Delhi Cooperative Societies Act. If that is the position, the full import of Section 60 of the said Act comes into play and it must be held that the suit of the plaintiff is barred under the provisions of the said Act and thus the decision given in the writ petition operates as a resjudicata on this point.

(17) Assuming for the sake of arguments that this judgment of the Division Bench cannot be said to have interpreted Section 60 of the Cooperative Societies Act in the manner as sought to be interpreted by counsel for the defendant, still the court has to give meaning to the judgment of the Division Bench. The writ petition was neither dismissed nor allowed. It was only directed to be disposed of. The dispute between the plaintiff and the cooperative society stood referred to the Registrar for giving his decision. The only alternate interpretation of this order of the Division Bench is that the Registrar was to act as a Local Commissioner to give his opinion with regard to the disputed question of fact being raised between the plaintiff and the cooperative society and after the said decision had been given, it was necessary for the aggrieved party to have taken resort to moving some application in the writ petition itself for having the writ petition decided finally. Even in that situation the present suit would be deemed to be an abuse of process of this court and not maintainable as a similar dispute was subject matter of the writ petition, which was not decided finally in the manner of being allowed or dismissed.

(18) At any rate, I agree with the interpretation being put to the judgment of the Division Bench by learned counsel for the defendant that the Division Bench should be deemed to have impliedly held that the Registrar has the power and jurisdiction to decide the dispute in question arising between the plaintiff and the cooperative society under Section 60 of the Delhi Cooperative Societies Act and that decision operates as a resjudicata between the parties. If that is so, the effect of the decision in the writ petition is that the present suit is to be deemed to be barred by virtue of Section 60 of the Delhi Cooperative Societies Act.

(19) The issue is decided against the plaintiff.

(20) In view of the decision given in issue No. 3, the suit is liable to be dismissed. I dismiss the suit and leave the parties to bear their own costs.