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Bhabdara Zilla Sahakari Shetki Kharedi Vikri Samiti Ltd. Vs. Damodar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 373 of 1977
Judge
Reported inAIR1984Bom362
ActsMaharastra Co-operastive Societies Act, 1961 - Sections 93; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantBhabdara Zilla Sahakari Shetki Kharedi Vikri Samiti Ltd.
RespondentDamodar and ors.
Advocates:A. Shelat, Adv.
Excerpt:
.....recovery of any balance left from out of the sale proceeds personally form respondents 1 and 2 also for injunction. 91 explanation 2. consequently ,the finding arrived at by the officer ion special duty as well as maharastra state co-operativeappellate court are perfectly just and legal......appeal no. 460 of 1973 arising out of the dispute no. 7 of 1973 decided on 30-4-1973 by officeron special duty, nominee of the district deputy registrar, co-operativesocieties.2. the petitioner filed a suit againstrespondent 1 and 2 . it is stated that respondent1 and 2 served with the petitioner as a cashier since 1947. it is stated that respondent 1 d defalcatedfunds of the societyto the extent of rs. 26.302,50ps. according to the to the petitioner, respondent1 used this amount for his personal puprpsoe. it is stated that his defalcation was detected sometime before 29-6-1971, when respondent 1 disclosed to the office bearers of the petitioner society that the actual cashin hand was short by rs. 26.00|- it is stated that this defalcation this amount even long before that. however,.....
Judgment:
ORDER

1. The petitioner (disputantsociety ) has filed this writ petition against the judgement dated 7-10-1976 passed by the Maharastra Sate Co-operative Appellate Court in Appeal No. 460 of 1973 arising out of the dispute No. 7 of 1973 decided on 30-4-1973 by Officeron Special Duty, Nominee of the District Deputy Registrar, Co-operativeSocieties.

2. The petitioner filed a suit againstrespondent 1 and 2 . It is stated that respondent1 and 2 served with the petitioner as a cashier since 1947. It is stated that respondent 1 d defalcatedfunds of the societyto the extent of Rs. 26.302,50ps. According to the to the petitioner, respondent1 used this amount for his personal puprpsoe. It is stated that his defalcation was detected sometime before 29-6-1971, when respondent 1 disclosed to the office bearers of the petitioner society that the actual cashin hand was short by Rs. 26.00|- It is stated that this defalcation this amount even long before that. However, many times he used to bring amount from his friend and at the time of audit he used to show that cash balance was corect. After the auditor completed audits he used to return the amount to those from whom he brought. It is further stated that lastlyit was not possiblefor him to manage the affairsas aforesaid. It is further sate that the office bearsof the petitioner society agreed to take the sale deed of respondent it land at the rate of Rs. 26,302 50 as a repayment of the defalcated amount. After the sale deed a was executed in favour of the petitioner according to the petitioner, there was on oral agreement between the petitioner and respondent 1 to the effect that respondent 1 would repurchase the lands front petitioneralong with interest at Re|- powercent per month and if her failed to repurchasehe would find out some other purchaser for sufficient amount to cover the disputants claim withinterest. It is the case of the petitioner that respondent 1 did not pay ths amount within one year as per agreement. Respondent 1 could not manage to sell the land to some other person for realising tht land to some other person for realising the amount. The property purchased by the petitionerwas under a sale deed executed by respondent 1 in favour of the petitioner , respondent1 put the petitioner in actualand physical possession of the land sold by respondent 1. Thus, the petitioner was in possession of the land. It iis also the case of the case of the petitioner that after the petitioner had taken possessionof theland, the petitioner cultivated the land for some year through its servants and reaped the benefits of the property. The petitioner further states that after sometime respondent 1 obstructed the petitioner possession of the land and he was not allowing the by him the petitioner under the sale ded. Hence the petitioner filed a dispute before the Registrar, co-operative Societies, Bhandara under Sections 91 and 93, MaharashtraCo-operativeSocieties Act, 1960 (in 'p' Form). The petitioner prayedfora decree against respondent 1 and 2 for confirming the possession of the land in favour of the petitioner and for injunction against respondent 1 restraining him from disturbingthe possession of the petitioner. In the alternative, the petitioner and for injunction against respondent 1 restraining him from disturbingthe possession of the petitioner. In the alternativethe petitioner (disputant) prayed that in case it is held that the petitioner should be put in possession of the suit lands, The petitioner also prayed that a decree directing the sale of the disputed land for realising the amount of Rs. 31,204,96 outstanding due from respondent 1 with interest be passed against him and if the sale proceeds of this land, came less than the amount stated above, a decree should be passed against respondent 1 for the amount be remaining due and the same should be realised from joined as a partly because he was a of respondent 1 to the extent of Rs 2,000|-

3. The respondent filed the written statement and amongst other pleas they mainly contended that he dispute was not maintainable under S. 91, Maharastra Co-operative Societies Act. in fact accordingto them, there was no dispute at all and, therefore, they requested that the preliminary issues be framed and the question of jurisdiction be decided as it goes tothe very root of the case. They also denied the claim of the petitioner society on merits.

4. After through the pleading of the parties the learned Officer on special Duty in Arbitration Case No. 7|1973, vide award dated 30th April, 1973 held that dispute filed by the petitioner against respondents 1 and 2 is not a dispute triable under Section 91, Maharastra Co-operative societies Act, and hence the dispute be returned back to the petitioner society for filing before the appropriate Court. The learned Officer on Special Duty also held that the petitioner in fact recovered the defalcatedamount from respondent 1 and so far as thee business of the petitioner society with respondent 1 is concerned, it was not subsisting and the dispute, which is alleged is altogether a different dispute extraneous to the business and of the petitioner1 with respondent1 is concerned it was not subsisting and the dispute, which is alleged is altogether a different disputeextraneous to the businessof the petitioner and wouldnot come within the ambitof dispute touching and scope of S. 91, Maharastra Co-operative SocietiesAct. The learned Officer on Special Duty relied on rulingreported in : [1969]1SCR887 , DEccan Merchants Co-operative bank Ltd. v. M|s Dalichand Juraj Jain. In this ruling while discussing the question whether the dispute touches the assets of the business of the society, their Lordship of the Supreme Court remarked as follows (at p. 1326) :-

'The question arises whether the dispute touchingthe assets of a society would be a dispute touching the busines of a societyu. This would depend on the nature of the society and the rules and bye-laws governing it. Ordinarily, if a society owns building and lets out partys of the building which it does not require of its own purpose it cannot be said that lettingout of thoseparts is part of the business of a society . But it may be that it iis the business of a society to construct and buy houses and let them out ot its members. In that case letting out property may be part of its business'.

5. In the instant case it was held that it iis not the business of the society to purchase the lands. Consequently, the Officer of Special Duty returned the dispute to the petitioner for presentation to proper Court the vide his award dated 30th April 1973. The petitioner preferred an appeal against the said award to the maharastra State Co-operative Appellate Court vide Appeal No. 460 of 1973 and this Appellate Court vide its judgement dated 7-10-1976, dismissed the appeal and confirmed the orderpassed by the Officer on special Duty. Both these orders are now challenged in this writ petition by the petitioner.

6. The learned counsel for the petitioner society shri Shelat, Advocate contended before the that in view in of Explanation to Section 91 the dispute may be touching to the constitutionelection f the office bearers, thee conduct of generalmeetings, management or business of the society. According to him, there may be any dispute between the society and itsservantsand any dispute is covered under explanation and hence the Officer on Special Duty has certainly jurisdiction to entertain the dispute filed by the petitioner. It is not possible to accept is submission. The petitioner case is that `respondent1 is a cashier of the petitioner and he had defalcated the amount to the extentmentioned by the petitioner, and the petitioner and he had in fact found out a way the defalcated amount and the petitioner took sale deed tothe extent of the defalcatedamount from respondent 1 Consequently, the amount of the petitioner stands satisfied on taking a saleded form respondent 1. Thereafter the petitioner allegesagreement of reconveyance disturbanceis possession, agreement of to sell the suit lands for recovery of the amount of the petitionerfor recovery of any balance left from out of the sale proceeds personally form respondents 1 and 2 also for injunction. For deciding such an issue, for which does not relate to the business of the petitioner the proper forum would not be a Co-operative court but a Civil Court. The dispute contemplated under Section 91 is a dispute touching the constitution, election of te office bearers conduct of general meeting, the management or the business sof the society and the explanation mentioning dispute will obviously mean that such a dispute will be dispute touching the constitution , election of the officer bearer, conduct of genera meeting, management or business of the society. In my opinion the claims mentioned into sub-clauses have to be touching the constitution, election of the office bearers, conduct of general meeting, management or business of the society. Relying upon the principle laid down in the aforesaid Supreme Court Ruling. I also hold that the reliefs claimed by the petitioner in dispute on the basis of the averments in the dispute do not concern the business of te society. It does not obviously come within the ambit of s. 91 Explanation 2. Consequently , the finding arrived at by the Officer ion Special Duty as well as Maharastra State Co-operativeAppellate Court are perfectly just and legal. The Officer on special Duty has no jurisdiction to entertain the dispute under S. 91, MaharashtraCo-operative Societies Act. Both the orders passed by the Officer on Special Duty and the Appellate Court therefore, deserve to be main and the need no interference.

7. The petition is without substance and deserve to be dismissed and it is hereby dismissed . The rule is thus discharged with no order as to costs.

8. Petition dismissed.


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