Sarva Hitkari Co-Operative ... vs Surjeet Singh Malhotra And Ors.
1994 Latest Caselaw 180 Del

JUDGMENT

R.C. Lahoti, J.

(1) This revision by one of the defendants seeks to challenge an order of the court below adjudicating upon a preliminary issue and holding the suit filed by the plaintiff/respondent No. 1 to be not barred under Section 93 of the Delhi Co-operative Societies Act 1972.

(2) The facts in brief, in so far as relevant for the decision of the present revision. The defendants/petitioner is a Co-operative Society governed by the Delhi Co-operative Societies Act, 1972 (hereinafter the Act, for short). According to the plaintiff/respondent No. 1 he applied for the grant of membership of the Society the year 1963. The application was accepted by the then Honorary Secretary of the Society informing the plaintiff of his membership having upon accepted and his name having been placed on the waiting list. The list was submitted to the Delhi Administration. The plaintiff was also informed that his prayer for regularisation of membership shall be considered on merits after allotment of plots had been made to the regular members. Ultimately he received a letter dated 26.6.1983 /1.7.1983 informing him that he had not been admitted as a member of the society.

(3) The plaintiff served a notice under Section 90 of the Act and then filed a dispute under section 60 of the Act before the Registrar of Co-operative Societies which was referred for decision to the D.R./Arbitrator. By order dated 12.11.1984 the D.R./Arbitrator refused to entertain the dispute referred to by the plaintiff/ respondent by forming an opinion that he was not admitted to the membership of the society. To quote from the operative part of the order dated 12.11.1984 of the D.R./Arbitratoi:- "SINCE no application appear to have been received, no resolution have been passed and no money has been received by the Co-operative Society and no share certificate have been issued, the claimant can not be considered as bonafide member of the co-operative society. In view of the above position, the dispute is not covered under Section 60 of the Delhi Co-operative Societies Act, 1972 and therefore, the dispute is not maintainable. The application of the claimant is dismissed." The present suit was filed on 4.2.1985 for the following reliefs:- (i) A declaration that the plaintiff was a member of the Society, defendant N, and entitled to all rights and privileges including allotment of plot as a member of this society, defendant No.1. (ii) A mandatory injunction commanding the deceased defendant No. 1 to allot a plot to the plaintiff in his capacity as a member of this society. In the alternative (iii) A mandatory injunction commanding deceased defendant No. 1 to admit the plaintiff as a member and to grant him all the rights and privileges as a member of this society.

(4) The defendant/petitioner having been noticed in the suit filed a written statement raising an objection inter alia that the suit was excluded from the cognizance of the Civil Court by reference to Sections 60 and 93 of the Act.

(5) Let the provisions of Sections 60 and 93 be noticed which are reproduced hereunder for the sake of ready reference:- 60.(1) Notwithstanding any thing contained in any lay for the time being in force, if any dispute touching the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society arises:- (a) among members, past members and persons claiming through members, past members members and deceased members, or (b) between a member, past member of person claiming through a member, past member and the society its committee or any officer, agent or employee of the society of liquidator, past or present, or (c) between the society or its committee and any past committee, any officer, agent of employee,or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent, or deceased employee of the society, or (d) between the society and any other co-operative society between a society and liquidator of another society or between the liquidator of one society and the liquidator of another society, such disputes shall be referred to the Registrar for decision and no court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. (2) For the purposes of sub-section (1), the following shall be deemed to be disputes touching the constitution: management or the business of a co-operative society, namely:- (a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased members, whether such debt or demand be admitted or not; (b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, as a result of the default of the principal debtor, whether such debt or demand is admitted or not: (3) any dispute arising in connection with the election of any officer or a society other than society mentioned in sub-section (1) of Section 31. (4) if any question arises whether a dispute referred to the Registrar under this Section is or is not a dispute touching the constitution, management or the business of a co-operative society, the decision thereon of the Registrar shall be final and shall not be called in question in any court. 93. (1) Save as provided in this Act, no civil or revenue court shall have any jurisdiction in respect of:- (a) the registration of a co-operative society its bye-laws or of an amendment of a bye-law; (b) the removal of a committee; (c) any dispute required under section 60 to be referred to the Registrar; and (d) any matter concerning the winding up and the dissolution of a co -operative society. (3) Save a provided in this Act, no order, decision or award made under this Act shall be questioned in any court on any ground what soever.

(6) Sub -section (1) of Section 60 has two legs to stands on. In order to attract its applicability there should be a dispute touching the constitution, management or the business of a co-operative society as defined in sub-section (ii)of the Act. Then the dispute must be one raised amongst or between the persons or body of persons referred to in clauses (a) to (d) of Sub- section (1) Section 60(1) itself provides that the disputes falling within its ken have to be referred to the Registrar for the decision and the jurisdiction of court to entertain any suit or other proceeding in respect of such dispute is taken away. The enactment of clause (c) to sub-section (i) of Section 93 appears to be redundant and only by way of abundant caution so as to further manifest the legislative intent of barring the jurisdiction of court to entertain or decide any dispute which by virtue of Section 60 of the Act lies within the domain of the Registrar.

(7) Sub -section (i) and Sub -section (iii) of. section 93 of the Act have different fields to operate in the realm of law. While sub-section (i) strikes at the very jurisdiction of court to take cognizance of any matter covered by clauses (a) to (d) of sub-section (i) of section 93 of the Act just as sub-section (i) of Section 60 does, sub-section (iii) of Section 93 does not bar the jurisdiction of the court as such but enacts a rule of evidence, rather rule of estoppel. The suit may be wider in its scope but at any stage of the trial no sooner an occasion may arise questioning an order, decision or award made under the Act the court shall shut its eyes to the question

(8) The certified copy of the order dated 12.11.1984 passed by the Deputy Registrar/Arbitrator is available on record of the trail court. The order was passed under Rule 88(4) of the Delhi Co-operative Societies Rule 1973 (hereinafter rules, for short). Rule 88 provides the procedure for making reference or dispute. As per sub-rule(i) the dispute has to be filled in writing in form 17. Sub-rule(2) prescribes for the fee and process fee leviable. On receipt of the application the same is to be entered in a Register in Form A under Sub-rule 3. Sub-rule 4 provides as under:- "IF the Registrar is satisfied that the application is maintainable under section 60, he shall by an order, admit the application for decision of the dispute in accordance with the Act and Rules;es and record his findings on the following points; (1) whether there is a dispute; (ii) whether the dispute comes within the purview of sub-section (1) of section 60; (iii) whether the dispute is between parties mentioned in clauses (a), (b), (c) and (d) of sub-section (1) of section 60; or (iv) whether the dispute is within time according to sub-section (4) of section 60."

(9) It appears that the Registrar, having prima facie formed an opinion on the maintainability of the application filed by the plaintiff, had noticed the opposite parties. Both the parties were heard. Thereafter the D.R./Arbitrator arrived at a finding that the dispute fall within the purview of sub-section (1) of Section 60 as it was not raised by one of the parties mentioned in Clauses a,b,c & d of sub-section (i) of Section 60 in as much as in his opinion applicant before him was neither a member, a past member or a persons claiming through a member past member or deceased member. The Deputy Registrar/Arbitrator has recorded a specific finding that the plaintiff was not even admitted as a member of this society. In view of that finding the dispute raised by him ceases to be entertainably by Registrar of Co-operative and becomes entertainable by a Civil Court. Afterall the plaintiff is canvassing a civil right. He is claiming a declaration of his status as a member of this society. The suit filed by the plaintiff is of a civil nature and hence cognisable by a Civil Court under Section 9 of the Code of Civil Procedure. It is pertinent to note that Section 60 or Section 93(i) none contemplate a dispute as to whether a person is or is not member of the Society being referred to the Registrar of being not cognisable by Civil Court.

(10) Learned counsel for the defendant/petitioner has submitted that 'order' has been defined by Clause (xix) of Rule 2 of the Rules to mean an order made by the Registrar in exercise of his powers under the Act, the Rules and the by-laws and hence an order passed under Rule 88(iv) of the Rules would certainly be an order passed under the Act attracting applicability of sub-section (iii) of Section 93 of the Act. This contention need not hold up this Court for the present inasmuch as, as has already been stated herein above, sub-section (iii) of Section 93 has no relevance for determining the question of maintainability of a suit before a Civil Court. If the order dated 12.11.1989 passed by the Deputy Registrar/Arbitrator is immune from challenge before the Civil Court operating as estoppel on the parties to the order, a consideration which would be relevant at the time of deciding on merits the issues arising for decision in the case.

(11) The learned counsel for the petitioner has also submitted that in so far as the question of allotment of plot is concerned, that is, certainly a dispute touching the business of a Co-operative Society and to that extent at least the jurisdiction of the Civil Court was barred. The learned counsel for the petitioner appears to be right but even that would not entail dismissal of the suit at its threshold. The suit shall have to be tried. While form, forming an opinion on the entitlement of the plaintiff for the reliefs prayed for in the plaint, the court may grant such of the reliefs as arc within its competence, leaving the same to be agitated before an appropriate forum consequent to or pursuant to the reliefs granted by it within its competence.

(12) If some of the reliefs prayed for in the plaint are not cognizable by the Civil Court while some of them arc so cognizable whether the plaint can be rejected by reference to Order 7 Rule 11 (d) of the CPC. The observations made by P.C: Jain, J. speaking for himself and S.S.Sandhawaiia, J. in the Full Bench decision of Punjab and Haryana High Court in Balwant Singh Vs. State Bank of India, may be referred to with advantage :- "THE provisions of Order 7, Rule 11(a)wouldbe attracted only in a case where by reason of the plea that a plaint does not disclose a cause of action, the plaintiff is to be wholly non-suited but this rule would have no applicability to cases where a plaint discloses a cause of action in respect of the part if the claim....."

A.D. Koshal, J, agreeing with the other two Judges, added:-    "THE plaint in a suit is the document evidencing the suit and not the suit itself and can, therefore, either be rejected or retained which, in other words; merely means that it can either be thrown out or proceeded with. It cannot be torn up in two parts, one of which is discarded and the other is entertained."  

(13) For the forgoing reasons it is held that the cognizance of the suit is not barred before the Civil Court under Section 93(1) of the Act. The revision stands disposed of accordingly. No order as to costs.