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Bhagabat Charan Jena and ors. Vs. Ram Narayan Mohanty - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtOrissa
Decided On
Case NumberA.F.A.D. No. 161 of 1945
Judge
Reported inAIR1951Ori271
ActsBihar and Orissa Co-operative Societies Act, 1935 - Sections 48
AppellantBhagabat Charan Jena and ors.
RespondentRam Narayan Mohanty
Appellant AdvocateD. Sahu, Adv.
Respondent AdvocateS.P. Mohapatra, Adv.
DispositionAppeal allowed
Cases ReferredBindeswari Prasad v. Shiva Dutt
Excerpt:
.....mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - with success on the ground that the pltfs......by way of principal, rs. 200-11-0 by way of interest upto 7-9-1941 on. account of .....& the said member deft. 1 refuses to pay or evades payments of the same.'this negatives the contention of mr. mohapatra, the learned counsel for the resp., that there was any reference before him as to whether the present pltfs. here (defts. 8, 6, 7, 9, 10 &. 11 before the registrar) were members of the society. in his concluding portion of the award, he says:'i hereby give the following decision, namely, that the said deft. 1 jointly & severally with defts. 2, 3 & 4 the said sureties do pay the routmandarini co-operative society rs. 500 as principal, rs. 200-11-0 as interest upto 7-9-41, total rs. 700-11-0 & further interest on the principal sum of rs. 500 at the rate of 9 par cent, per annum from.....
Judgment:

Ray C.J.

1. This is pltf's appeal in a suit for a declaration that the award passed by the Registrar, Co-operative Societies, is not binding: against them & for the consequential relief of restraining the society from executing the award against them.

2. The pltfs. 2 & 3 are brothers & the pltfs. 1 & 4 to 1 are cousins of one Kali Charan Jena. In this appeal it is not controverted that they were members of a joint Hindu Mitakshara family with Kali Charan (deft. 2) at all material times. Kali Charan is a member of Routmandarini Co-operative Society of which deft. 1 (resp. 1) is the Secretary. Kali Charan, as a member, took a loan of Kb. 6C0 on 3-9 29 for the purpose of paying off Certain debts incurred for purchase of lands-a purpose recognised under the bye laws. In the Loan Register, he got certain persona as suraties, who undertook, the liability in case Kali Charan did not pay the loan to the Society. Ultimately, Kali Charan. not having been able to pay, there was a reference by the Society to the Registrar of Cooperative Societies under Schedule 8, Bihar & Orisaa Go-operative Societies Act. The reference is not before us &, therefore, we have only to infer from the Registrar's award as to what the scope of the reference was. In the earlier part of the award, there is a recital as to what was referred to him; bat it does not make clear that the question of membership or otherwise of the present pltfs. was at all before him. On the contrary, he opens his award with the words

'Whereas the Routmandarini Co-operative Society aforesaid has made a reference in writing to me complaining that the deft. 1 (deft. 2 before us) a member of that society owes Rs. 500 by way of principal, Rs. 200-11-0 by way of interest upto 7-9-1941 on. account of .....& the said member deft. 1 refuses to pay or evades payments of the same.'

This negatives the contention of Mr. Mohapatra, the learned counsel for the resp., that there was any reference before him as to whether the present pltfs. here (defts. 8, 6, 7, 9, 10 &. 11 before the Registrar) were members of the Society. In his concluding portion of the award, he says:

'I hereby give the following decision, namely, that the said deft. 1 jointly & severally with defts. 2, 3 & 4 the said sureties do pay the Routmandarini Co-operative Society Rs. 500 as principal, Rs. 200-11-0 as interest upto 7-9-41, total Rs. 700-11-0 & further interest on the principal sum of Rs. 500 at the rate of 9 par cent, per annum from 8-9-41 together with all costs till the date of realisation.'

3. On the margin of the para, in which the aforesaid words appear, we find mention of the following words: 'defts. 5, 6,7, 9, 10 & 11.' On fair interpretation, it may be said that these words were intended to be inserted after the words 'deftfs. 2, 3 & 4 the said sureties.' Later by way of giving reasons why he held the liability against delta. 6 to 11 before him, he says: 'Because they have been benefited with she loan incurred by deft. 1 as Karta of the joint family.

4. Mr. Mohapatra relies vary much upon the construction of this observation, particularly he lays emphasis on the words 'loan incurred by delt. 1 as karta of the joint family.' From this, he argues that the award purported to decide that defts. 5 to 11 before the Registrar were members of the Society through deft. 1 as karta of family. I cannot accede to this contention. On the contrary, the observation seems to mean something far from it What he means to say is that in incurring the loan he acted as Karta of the family because the loan was for the benefit thereof. This is quite different from saying that he was all the while a member of the Society on behalf of the family. In the latter case, all his actions should, generally & ordinarily; be binding on the family as members of the Society. In some particular circumstances, a cause of exoneration may be pleaded by the other members of the family but that does not make him the less a member on behalf of the family. The decision that persons other than members or past members or their legal representatives or their surities are liable for the loan incurred by a member is a question which is not within the jurisdiction of the (Registrar of Co. operative Societies. In order to demonstrate this, we have to look to the statutory provisions bearing upon the question. To start with, a 'member', as defined in Schedule (f), Bihar & Orissa Co-operative Societies Act, 1935, includes

'a person joining in the appln. for registration of a society & a person admitted to membership after registration in accordance with the rules & bye-laws of such society.'

It is urged, as it has been held by the lower appellate Ct., that the question whether a parson is or was a member of a registered society or not is a dispute over which the Registrar, within purview of Schedule 8 may assume jurisdiction. The Expl (2) of the section, to my mind, conveys nothing more & nothing less than that, the Registrar can decide the question as to whether the person joined in the appln. for registration of the society or admitted to membership after registration is in accordance with the rules & bye-laws of such society. Any question as to liability of somebody other than the recorded member is foreign to this Expin. & also to any. thing as dispute within the meaning of Schedule 8. The liability may flow from consideration other than membership & therefore the salient question which he has to decide & of which only he has the jurisdiction to decide is whether the; particular person 'is a member or not. This membership may be acquired either individually or in a representative manner. Of course, this point is not free from difficulty but for the purposes of the present case, we assume that a person may constitute, by his act & by the assent given by the members of the society in accordance with the rules & bye-laws himself a member not only as an individual but also a representative of a joint Hindu family. But this is a fact which ha3 to be established before any liability can be fixed upon an outsider on the footing that he is a member through another person. Liability on account of one's being represented through another member & liability on the ground that one is benefited by the loan incurred by a member of the Co-operative Society may, in the particular event of a case, coincide but that is not the question for solution. The Ragistrar has been given a special jurisdiction which excludes the ordinary jurisdiction of a civil Ct. either to the benefit or to the detriment of the citizens. Such provision, barring the jurisdiction of the civil Ct. which is the ordinary forum for all civil disputes between subjects inter se or between them and others, must be very strictly construed. The distinction that I want to make out is that the liability of the present pltfs. (defts. & to 11 before the Registrar) as members of the society, having been such members through their representative, the deft. 2, is distinct & separate from their liability for the debts of deft. 2 on any other grounds of which the member may be legion. With regard to the first, the Registrar has the jurisdiction to determine & with regard to the other he has not. In the fasts of the present case, it may be quite permissible that the society may sue in the ordinary civil Ct. for recovery of these debts from Kalioharan & the present pltfs. with success on the ground that the pltfs. are liable as Kalicharan in that particular transaction acted for the benefit of the family as its manager. But this ground of liability, however, can never be the subject of adjudication within the jurisdiction of the Registrar. Therefore, the only reference that can be authoritatively made with regard to the liability of the pltfs. should be on the ground that the joint family, of which they are members, was a member of the society through Kalicharan as Karta or representative as the case may be Such a reference, as I have already said, was never before the Registrar nor has he decided such a dispute, namely, whether the pltfs. were members of the society or not. If the Registrar, held them liable, it was on a ground other than their membership. In this view, the award, so far as binds the pltfs. is without jurisdiction. Mr. Mohapatra has invited our attention to a decision of the Patina H. C. in the case of Bindeswari Prasad v. Shiva Dutt, 19 P. L. T. 328 : (A. I. R. (25) 1938 Pat. 315 F. B.). This decision is not at all inconsistent with the view that I have expressed above. This decision proceeds to lay down that a Hindu Joint Family may be a member of a Co-operative Society under the Bihar & Orissa Co-operative Societies Act & the rules & byelaws (which are the same as rules & bye-laws in force in Orissa) through one of its representatives. In the case before them, it had been throughly proved & found that Lachminarayan, the recorded member, was taken in as a member with the consent of all the adult members of the family by a rural society & that with their consent, he had put in a joint family property & not his undivided share therein in the Hasiat Register & besides, his father withdrew his appln. for membership on the ground that this son represented them all. In these facts, it was found that the joint family was a member through Lachminarayan &, therefore, the liquidator's order of contribution as against the family was a binding one. Under the circumstances of the case, however, we are quite clear in our mind that deft, 2 (Kalioharan) has not been proved to have been a member in representative capacity so far as we have been able to gather from the facts & circumstances before us. The award, therefore, will be set aside as against the pltfs. It may be said, however, that it is quite open, subject to law of limitation standing in their way, if at all, to the members of the society to refer the question of pltfs. membership through deft. 1 over again to the Registrar.

5. In the result, the appeal is allowed with costs, the judgment of the learned lower appellate Ct. is set aside & that of the learned Munsif restored.

Panigrahi, J.

6. I agree.


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