V.K. Saluja vs P.O. Delhi Cooperative Tribunal, ...
2000 Latest Caselaw 190 Del

ORDER

Dr. M.K. Sharma, J.

1. This writ petition is directed against the order dated 5.3.1998 passed by the Registrar Cooperative Societies in a proceeding under Section 60 of the Delhi Cooperative Societies Act, 1972 (hereinafter called the 'Act'), dismissing the petition filed by the present petitioner as not maintainable and also against the order dated 21.7.1998 passed by the Delhi Cooperative Tribunal, dismissing the revision petition under Section 78(6) of the Act.

2. The petitioner as claimant filed a petition under Section 60 of the Delhi Cooperative Societies act alleging that certain payments were due from the respondent-Society to the petitioner who was an Architect for the Society and that in spiteful of notices issued the same has not been paid by the Society. The said petition was contested by the Society contending, inter alia, that the petitioner being a firm and Architect is not a member within the meaning and scope of Section 60 of the aforesaid Act. The petitioner on the other hand to substantiate his claim that the petition is maintainable filed a copy of the agreement which contains a clause that in the event of any dispute between the Architect and the Society the said dispute shall be got resolved by appointing an arbitrator who shall be the President of the Society.

3. The Registrar, Cooperative Societies, after hearing the parties held that the aforesaid petition is not maintainable withing the meaning and scope of Section 60 of the act as the petitioner is not a member or is claiming through a member within the strict meaning of the term 'Member' as defined in Section 2(k) of the Act and the said petition was accordingly dismissed. Being aggrieved by the aforesaid order, a revision petition was filed on which the Tribunal after hearing the parties held that the claim petition of the petitioner for recovery under Section 60 of the Act is not maintainable as the petitioner is not a member of the society nor he is claiming through a member of the Society. After recording such findings, the Tribunal also dismissed the revision petition and hence the present petition.

4. Mr. U.L. Watwani, counsel appearing for the petitioner submitted that both the revisional authority as also the registrar acted illegally and without jurisdiction in holding that the petitioner does not come within the ambit of the provisions of Section 60 of the Act. According to him, the petitioner is covered under sub-section (1)(c) of Section 60 of the Act as the petitioner worked as an agent of respondent No.3 Society. In support of his contention, the learned counsel relied upon the provisions of Sections 182 and 188 of the Contract Act. Mr. Rakesh Munjal, counsel appearing for respondent No.3/Society, however, refuted the aforesaid claim of the petitioner and submitted that the petitioner could not claim himself to be an agent of the Society for no agency was created in favour of the petitioner by the Society at any point of time. He also submitted that there was a specific clause in the agreement arrived at between the Society and the petitioner that any dispute arising out of the agreement would be resolved through the process of arbitration by appointing an arbitrator who would be the Chairman of the Society. He contended tht the petitioner, therefore, could not have invoked the provisions of Section 60 of the Act and had the only remedy of resorting to the arbitration clause in the agreement which he consciously avoided and, therefore, there is no merit in this petition. In support of his contention, the learned counsel relied upon the decision of the Supreme Court in Supreme Coop. G/H Society Ltd. Vs. M/s. H.S. Nag & Ors. decided by the Supreme Court on 9.5.1996.

5. The question that, therefore, falls for my consideration is whether the petition filed by the petitioner under Section 60 of the Act is maintainable or not.

In order to appreciate the contention of the learned counsel appearing for the petitioner, it would be necessary to extract below the relevant provisions of Section 60(1):-

"60.(1) Notwithstanding anything contained in any law for the time being in force, if any dispute touching the onstitution, 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 and deceased members of

(b) ..... ..... .....

(c) between the society or its committee and any past committee, any officer, agent or 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) ..... .... ....

such dispute 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."

6. The petitioner also entered into an agreement with the society which is dated 17.8.1996 whereby the Society appointed the petitioner as an Architect for construction of the proposed Community hall on the Society's land at Shahdara, Delhi. Clause 14 thereof provided that in the event of anydispute, difference or question arising out of the aforesaid agreement or in any way touching the agreement or execution of the said works, the same would be referred to the President of the Society who would be the sole arbitrator and his judgment would be final and binding on both the parties.

7. The claim of the petitioner in the petition filed under Section 60 of the Act was for payment of his dues arising out of the agreement entered into between the parties. the aforesaid claim which is disputed by the Society was a matter covered within Clause 14 of the said Agreement. On raising dispute by the petitioner, a reference to the arbitrator was required to be sought for by the petitioner which, however, was not done and instead a petition under Section 60 of the Act was filed before the Registrar, Cooperative Societies for decision of the registrar.

8. Admittedly the petitioner is neither a member nor is claiming through a member which is the concurrent findings of fact of the Registrar as also of the tribunal. Counsel for the petitioner submitted that the petitioner would come withing the meaning and expression of the word 'agent' as appearing in Section 60(1)(c) and, therefore, the disputes between them could also be referred to the Registrar for his decision. the said contention, in my considered opinion, is mis-placed and not tenable for the petitioner cannot be said to be an agent of the society. No documentary evidence has been placed on record by the petitioner to prove and establish his claim that an agency has been created in between themselves. The petitioner has failed to establish that the Society had ever recognised the petitioner as its agent nor is there any document on record to prove that an agency was created between the parties. Knowing fully well that the petitioner would not come within the ambit of the provisions of Section 60 of the Act, a specific clause was inserted in the agreement for resolving disputes, if any, which could occur between the parties during the working of the Agreement. The very purpose of inserting a clause for resolving the disputes through the process of arbitration in terms of Clause 14 of the Agreement makes it crystal clear that the parties intended and understood that the provisions of Section 60 of the act are not applicable in the case of the petitioner.

9. In the writ petition the petitioner, except for taking up a ground that the Tribunal had wrongly and illegally declined to admit the case of the petitioner under Section 60 of the Act although the petitioner was very much covered under sub-section (1)(c) of Section 60 as the petitioner worked as an agent of respondent No.3-Society has not pleaded any material fact to establish his claim as an agent. No document has been placed on record of the writ petition to show that any agency was created or that the petitioner was ever recognised by the Society as an agent. In the absence of any specific authority, the petitioner could not conclude a contract for the Society and, therefore, is not an agent. In the light of the aforesaid findings, I do not find any merit in this petition and the same is dismissed, but, without any costs.