Ganesh Raghunath Mamidwar vs Devgiri Sahkari Sakhar Karkhana Ltd.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Bom) 1391

2011(2) ALL MR 709
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. V.GANGAPURWALA, J.
Ganesh Raghunath Mamidwar
Vs.
Devgiri Sahkari Sakhar Karkhana Ltd., Phulambri &Ors.
First Appeal No.873 of 2010
Decided on : 28th September, 2010.

Advocates Appeared:
Mr. V. V. BHAVTHANKAR, Adv., for the Appellant.
Mr. M. M. JOSHI, Adv., for the Respondent No.2.

Headnote:Limitation Act, 1963 - Sections 3 and 5-Civil Procedure Code, 1908, Order VII, Rule 6-Limitation-Part of claim beyond limitation-Plaintiff not pleaded about extention of period of limitation under Order VII, Rule 6 of Code-Court ought to have considered aspect of limitation-Issue of limitation, a mixed question of law and fact-Must be framed by trial Court and to be decided after giving opportunity to parties.-While going through the pleadings in the plaint, it was observed by me that the plaintiff has claimed the arrears of salary from the year 2001. The suit is filed in the year 2005. As per Article 7 of the Limitation Act, the wages can be claimed for past three (3) years. The Court below has overlooked this aspect. Even if the defendants have not pleaded about limitation, still, as per Section 3 of the Indian Limitation Act, where on the face of it could be seen that the part of the claim is beyond limitation and the plaintiff has not pleaded anything about the extension of period of limitation as is required under Order VII, Rule 6 of the Civil Procedure Code then in such circumstances, the Court ought to have considered the aspect of limitation. The trial Court has failed to consider this aspect. The issue of limitation is a mixed question of law and fact. The trial Court shall frame the issue of limitation and decide the same after giving opportunity to the parties.
Civil Procedure Code, 1908 - Section 9-Jurisdiction of Civil Court-Civil Court has inherent jurisdiction in all types of civil disputes under Section 9 of Code-Unless a part of that jurisdiction curbed out and conferred on any other Tribunal or authority-Jurisdiction of Civil Court ousted by statute to be construed strictly.-In all types of civil disputes, the Civil Court has inherent jurisdiction as per Section 9 of the C.P.C unless a part of that jurisdiction is curbed out from such jurisdiction expressly or by necessary implication by any statutory provision and conferred on any other Tribunal or authority. The Courts generally construe the provision of exclusion of jurisdiction of Civil Court strictly. The statute ousting the jurisdiction of Civil Court has to be strictly construed.
Civil Procedure Code, 1908 - Section 9, Order VII-Jurisdiction of Court-Plaint-Allegations made in plaint-Jurisdiction of Court to be determined on basis of said allegations-Pith and substance of allegations to be kept in mind so also pith and substance of relief sought.-It is well settled that jurisdiction of the Court is to be determined on the basis of allegations made in the plaint. The pith and the substance of the plaint allegations has to be kept in mind so also the pith and substance of the relief sought.

JUDGMENT

Heard.

2. Admit.

3. This Court vide its order dated 21.4.2010. had passed an order that the parties are put to notice that the appeal would be heard finally at the stage of admission. Record and proceedings is received by this Court. As such with the consent of the parties the First Appeal, is taken up for final hearing.

4. The present appellant is the original plaintiff. The plaintiff had filed a suit for recovery of an amount of Rs.3.73266/- (Rupees three lacs seventy three thousand two hundred sixty six) against the defendants/present Respondents towards difference of salary, leave salary. unpaid salary, annual increments. Provident fund, gratuity etc.. The plaintiff contended that he worked as a Chief Accountant/f n-charge Managing Director with the defendant No.1 Sugar Factory . As the defendant did not pay the amount claimed by him inspite of issuance of notice, the plaintiff filed the suit.

5. The defendants appeared in the suit and denied the claim of the plaintiff. Along with other contentions, the defendants also raised the contention of jurisdiction contending that the plaintiff is workman and as such the jurisdiction lies with the Labour Court. The Civil Judge (Senior Division), Aurangabad, vide its judgment and decree dated 6.2.2010, held that plaintiff is entitled for arrears ofRs.3,73,266/(Rupees three lacs seventy three thousand two hundred sixty six) but dismissed the suit on the ground that the Civil Court does not have jurisdiction to try the suit in view of Section 91 of the Maharashtra Co-operative Societies Act and only the Co-operative Court or the Registrar of Co-operative Societies shall have the jurisdiction. The plaintiff has assailed the said judgment before this Court.

6. I have heard Mr. V. V. Bhavthankar. learned counsel for the appellant and Mr. M. M. Joshi. learned counsel for the Respondent. Mr. Bhavthankar, learned counsel canvassed following propositions:

(a) The plaintiff was working as Chief Accountant and his claims for arrears of salary. unpaid salary etc. would not come within the purview of the expression '"business of the society" and the Civil Court shall have jurisdiction to try and entertain the suit of the present nature. To buttress his submission. the learned counsel relied on the judgment of the Apex Court in the case of "Morinda Co-op. Sugar Mills Ltd. Vs. Morinda Co-op. Sugar Mills Workers' Union", 2006(6) Bom.C.R. 69.

(b) The Court had come to the conclusion that the plaintiff is entitled for the said amount of claim, as such ought to have granted the decree.

7. Per contra. Mr. M. M. Joshi. learned counsel for the Respondent submitted:

(a) The provisions of Section 91 of the Maharashtra Co-operative Societies Act would encompass the dispute of the present nature. The term "business of the society" would have a wider connotation and can not be given a restrictive meaning. The trial Court has come to the right conclusion that it has no jurisdiction to pass a decree. To buttress his submission he relied on the Division Bench judgment of this Court in case of "Pralhad Vithalrao Pawar Vs. Managing Director, Kannad Sahakari Sakhar Karkhana Ltd. and another" 1998(3) Mh.L.J. 214 : [1998(4) ALL MR 636].

(b) The defendant had to recover an amount of Rs.99,769-43 Ps. (Rupees ninety nine thousand seven hundred sixty nine and paise forty three) from the plaintiff. This aspect has not been considered by the Court below.

8. With the assistance of the learned counsels for the respective parties. I have gone through the record and proceedings. so also the pleadings of the parties. Before adverting to the contentions raised by the learned counsels, it would be appropriate to reproduce the relevant provisions:

Section 91 of the Maharashtra Cooperative Societies Act-

"91. Disputes

(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 elections of committees of the specified

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2010 Supreme(Bom) 1391

2011(2) ALL MR 709IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)S. V.GANGAPURWALA, J.Ganesh Raghunath MamidwarVs.Devgiri Sahkari Sakhar Karkhana Ltd., Phulambri &Ors.First Appeal No.873 of 2010Decided on : 28th September, 2010.

Cases Referred (1)

2011(2) ALL MR 709
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
S. V.GANGAPURWALA, J.
Ganesh Raghunath Mamidwar
Vs.
Devgiri Sahkari Sakhar Karkhana Ltd., Phulambri &Ors.
First Appeal No.873 of 2010
Decided on : 28th September, 2010.