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IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Shetkari Sahakari Sangh Ltd...... Petitioner.
Versus
Shahuwadi Taluka Shetkari Sahakari Kharedi
Vikri Sangh others.... Respondents.
Writ Petition Nos. 2640 2676 of 1984, decided on 2-9-1998.
Advocates appeared :
M.A. Rane, for the petitioner.
V.B. Rajure, for respondent No. 1.
In the present case what is relevant is as to whether on facts the appellants are still entitled to recover the amount claimed in the dispute from these respondents and to what extent the bank is liable as a guarantor of the respondent No. 1. This was not explained how the difference came when and what period and for which goods. The learned Judge has, therefore, referred to the extract of the deposition of the appellants on this aspect and he rightly held that this claim of Rs 3,47,158,04 cannot be considered as proved. Deducting this amount from Rs. 5,87,50117 claim the balance Rs. 2,40,14813 and admittedly the appellants have recovered Rs.295,154,26 from the Government towards the suit claim as it was credited on 11-3-1978. Therefore, factually speaking there was no claim which could be asked for in the dispute, against these respondents and consequently the interest thereon. Hence, the appellants have failed to establish the claim in the dispute.
In view of the fact that the appellants have failed to establish by any statutory proof of their dues against the Respondent No. 1, the claim against the respondent No.2 the terms of agreement are not required for further any more consideration. Hence, the question of jurisdiction would not arise since it is rightly observed by the lower Court that a dispute can be filed by the Society against its agent. Similarly, the much agitated point of interest does not survive for consideration and secondly of the banks extent of guarantee. Since no dues are found outstanding for recovery of the liability would not survive for consideration against the bank also.
2.For the sake of convenience I intend to refer to the facts of Writ Petition No. 2640 of 1984. The petitioner is the original disputant under section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short "Co-operative Societies Act"). The disputant is registered under the provisions of the Co-operative Societies Act. The respondent No. 1 is also a society registered under the Co-operative Societies Act and respondent No. 2 is the District Central Co-operative Bank which too is registered under the Co-operative Societies Act. It is the case of the disputant that it carries on business in wholesale of fertilisers. The disputant appointed the respondent No. 1 as sub seller of the fertilisers as per the terms and conditions of letter dated 17-6-1968. According to the terms and conditions of the said agreement the disputant supplied the fertiliser to the respondent No. 1 on credit for sale. Respondent No 2 stood guarantee for 10% of the value of the fertiliser supplied by the disputant to the respondent No. 1. It is the case of the disputant that respondent No. 1 failed to pay a sum of Rs. 1,45,854.56 being the amount of credit as on 30-6-1970. A meeting took place between the disputant and the respondent No. 1 in the office of the District Deputy Registrar on 25-3-1974 wherein the respondent No. 1 admitted the claim and agreed to pay the entire amount by instalments. The respondent No. 1 did pay some instalments as admitted by him before the District Deputy Registrar but later on failed and neglected to pay further instalments. A sum of Rs. 1,13,116.52 remained due and payable by the respondent No. 1 to the disputant and, therefore, the disputant filed dispute against the respondent No. 1 and the respondent No. 2 herein as well as guarantor. The respondent No. 2 herein filed the written statement, disputed its liability and denied the claim of the disputant qua him. The respondent No. 2 set up the plea that it was not liable for claim which was decided before the District Deputy Registrar on 25-3-1974 between the plaintiff and respondent No. 1. The plea of limitation was also set up by respondent No. 2 and it was submitted in the written statement that the claim against him was barred by time. The Co-operative Court No. 1 by its judgment and order dated 21-2-1980 decreed the claim of the disputant to the sum of Rs. 1,13,116.52 and further interest at 12% on Rs. 1,07,699.11 from the date of the filing of the suit. The trial Court further decreed that if the respondent No. 1 failed to pay the suit claim, the respondent No. 2 guarantor was liable to pay 10% of the suit claim. The disputant was not satisfied with the judgment and order passed by the trial Court and, therefore, carried the matter in appeal before the Co-operative Appellate Court. The respondent No. 2 herein was also not satisfied and it also challenged the order passed by the trial Court. Both the appeals were heard together and by common order the Co-operative Appellate Court allowed the appeal filed by respondent No. 2 and set aside the judgment and decree passed against the respondent No. 2 guarantor on the ground that the claim against the guarantor respondent No. 2 herein, was barred by limitation and not maintainable. In view of this finding in the appeal filed by the respondent No. 2 guarantor, the appeal filed by the disputant was dismissed. The order passed by the Co-operative Appellate Court on 1-12-1983 is under challenge in the writ petition.
3.Sections 91 and 92 of the Co-operative Societies Act read thus:-
"91. (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the committee or its officers other than
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