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Jyoti Transport and Service Co-operative Society Ltd. Vs. the Aska Co-operative Sugar Industries Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 88 of 1979
Judge
Reported inAIR1980Ori62; 48(1979)CLT599
ActsOrissa Co-operative Societies Act, 1963 - Sections 68 and 121
AppellantJyoti Transport and Service Co-operative Society Ltd.
RespondentThe Aska Co-operative Sugar Industries Ltd. and anr.
Appellant AdvocateR. Mohanty, ;S.N. Kar and ;B.N. Prasad, Advs.
Respondent AdvocateS. Misra, Adv. No. 2 and ;R.C. Rath, Adv.
DispositionAppeal dismissed
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........no. 1 are co-operative societies and both the societies have been registered under the orissa co-operative societies act, 1962 (hereinafter referred to as the 'act'). defendant no. 2 is the managing director of defendant no. 1.3. it is not necessary for me to state in detail all the facts alleged in the pleadings of both the parties. suffice it to say that the plaintiff allegedly entered into a contract with the defendants for transporting sugar cane to the factory premises of the defendants. after execution of the said contract and part performance of the same for one year, the defendants called for tenders from other persons for doing the said work for the defendants. thereupon, the plaintiff instituted this suit praying for an injunction against the defendants prohibiting them from.....
Judgment:

S. Acharya, J.

1. The plaintiff has preferred this second appeal against the confirming decision of the Subordinate Judge, Aska in Title Appeal No. 4 of 1979.

2. Admittedly, the plaintiff and defendant no. 1 are co-operative societies and both the societies have been registered under the Orissa Co-operative Societies Act, 1962 (hereinafter referred to as the 'Act'). Defendant no. 2 is the Managing Director of defendant no. 1.

3. It is not necessary for me to state in detail all the facts alleged in the pleadings of both the parties. Suffice it to say that the plaintiff allegedly entered into a contract with the defendants for transporting sugar cane to the factory premises of the defendants. After execution of the said contract and part performance of the same for one year, the defendants called for tenders from other persons for doing the said work for the defendants. Thereupon, the plaintiff instituted this suit praying for an injunction against the defendants prohibiting them from inviting or accepting any fresh tender for transport of sugar cane by any other person to the factory premises of the defendants, and also for a mandatory injunction commanding the defendants to engage the plaintiffs trucks only for transport of sugar cane to the factory premises of the defendants.

4. The main defence of the defendants is that the suit is not maintainable under Sections 68, 121 and 127 of the Act.

5. The trial court, inter alia, held that as no notice under Section 127 of the Act was taken by the plaintiff against the defendants before the filing of the suit, the suit was not maintainable.

On this question the lower appellate court also held that transport is the business of both the co-operative societies, the parties in this suit, and so the suit is hit by Sections 68 and 121 of the Act.

6. The other points decided by both the courts below are not agitated in the hearing of this appeal and are not necessary to be stated and dealt with in view of my decision in this appeal.

7. Mr. Kar, the learned counsel for the appellant, strenuously urged that both the courts below have erred in law in deciding the above-mentioned question against the plaintiff-appellant. According to Mr. Kar, transport is not the business of the defendant-society, as that is merely a co-operative society for manufacturing sugar, and there is also nothing on record to show that transport of sugar cane is the business of the plaintiff-society, and that being so the decision of the courts below that the plaintiff's suit is barred under Section 68 of the Act is incorrect and liable to be set aside.

8. Mr. Kar admits that the plaintiff-society is a co-operative society registered under the Orissa Co-operative Societies Act, 1962. The name of the plaintiff-society is 'M/s. Jyoti Transport & Service Co-operative Society Ltd.'. Section 4 of the Act inter alia provides that a co-operative society which is established with the object of facilitating the operation of the said society can be registered under this Act. From the nomenclature of the plaintiff-society and its admitted registration in that name it is quite clear that one of the objects of establishing the society was to take up transport business, and to facilitate operation in that direction the society has been formed. Apart from that, it is seen from the pleadings and findings in this case that the plaintiff-society entered into a contract with the defendant-society to transport sugar cane to the factory premises of the defendants. This fact considered along with the other facts stated above supports the conclusion that the business of transport was one of the functions of the plaintiff-society, and for facilitating this business the plaintiff-society was established. From the above facts and from the facts and circumstances of this case, there is no doubt that one of the objects for which the plaintiff-society was established was to carry on transport business in the interest of the society. Both the courts below have found that the object of the plaintiff-society is to take up transport work for others.

9. Section 68 of the Act so far as relevant provides :--

'68. Dispute which may be referred to arbitration. -- (1) Notwithstanding anything contained in any law for the time being in force, any dispute touching the constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by a society or its committee against a paid servant of the society, shall be referred to the Registrar if the parties thereto are among the following, namely :--

(a) to (c) x x x x

(d) any other society or the liquidator of such society.

xx xx xx xx xx' In this case the disputes and the causeof action giving rise to the suit, withoutdoubt, touch the transport business of theplaintiff-co-operative society. That beingso, the disputes giving rise to this suitshould have been referred to the Registrar of the Co-operative Societies, asrequired under Section 68 of the Act, and a suit onsuch disputes is barred under the provisions of Section 121 of the Act, as specifically provided in Clause (c) thereof. Thereliefs prayed for by the plaintiff in thesuit can be granted by the Registrar ofCo-operative Societies as the decision onsuch disputes (Section 70), on a certificatesigned by the Registrar or any personauthorised by him in this behalf, shall bedeemed to be a decree of the Civil Courtand shall be executed in the same manner,as provided under Section 103 of the Act. On theabove considerations alone and without going into the question as to whether the dispute in question touches the business of the defendant-society or not, the Civil Court had no jurisdiction to entertain the present suit, and accordingly the suit was liable to be dismissed in limine. On the above facts and the position of law governing this case, the submissions of Mr. Kar in this respect have no merit.

The order of the court below dismissing the suit is upheld on the ground stated above.

10. There is, therefore, no merit in this appeal and it is accordingly dismissed, but in the circumstances there will be no order as to costs of this Court.


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