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2012 (1) ALL MR 606
High Court of Judicature at Bombay
GIRISH GODBOLE
Mahalaxmi Majoor Sahakari Sanstha Mydt
Versus
Kolhapur Jilha Majoor Sahakari Sansthancha Sangh Ltd., Kolhapur & Others
WRIT PETITION NO. 2045 OF 2011
Decided on : 12-12-2011
For summary rejection of plaint under Order VII, Rule 11(d), the Court must come to a conclusion that from the statement of the plaintiff in the plaint itself, the suit is barred by some law. It is impossible to hold that from the pleadings or the averments in the plaint, the suit can be held to be barred by any law.
MAHARASHTRA CO-OPERATIVE CREDIT SOCIETIES ACT, 1961 - Sections 11, 22(1-A) and 23 - Jurisdiction of Cooperative Court. - Court of Cooperative Court to adjudicate dispute as to eligibility of societies for being admitted as members of District Co-op. Sangh, not barred by Sections 11, 22 and 23 of Act.
It is settled law that while considering the prayer for rejection of plaint under Order VII, Rule 11(d) is concerned, only averments in the plaint have to be looked into and no other material can be looked into by the Court. The plaintiff/disputant has averred that the respondent Nos. 2 to 42 Societies are not labour contract co-operative societies but they have been registered as industrial producers co-operative societies. In fact, for deciding this contention of the petitioner, Section 11 will have no application. Mr. Borkar is therefore justified in his contention that the provisions of Section 11 do not have any application to the facts of this case. Therefore Section 11 has no application to the facts of the case. Section 22(1-A) which has been relied upon by Mr. Dani also does not have any application for the simple reason that the petitioner plaintiff disputant has not averred about any separate order passed by the State Government under that section Section 23 also does not have any application for the simple reason that it is not a case of either the disputant or the respondent that any of the respondents has not been admitted as member of the respondent No. 1-Society. Thus, the trial Court and the Appellate Court have clearly committed error on the face of record by holding that the jurisdiction of Co-operative Court has been barred by provisions of Sections 11, 22 and 23.
MAHARASHTRA CO-OPERATIVE CREDIT SOCIETIES ACT, 1961 - Section 91 - Scope of - A member of a society is entitled to file dispute against society under Section 91 of Act. The provisions of Section 9l the M.C.S. Act, 1960 will clearly indicate that a person claiming to be a member of a society can certainly file dispute against the society under Section 91. The learned Single Judge however has proceeded on the basis that such a person must first get his right as member established by moving the Registrar and only thereafter he can file a dispute. The said judgment and observation in paragraph-12 clearly overlook the provisions of Section 91 and hence do not constitute a binding precedent.
1. On 25th April, 2011 notice for final disposal of the Petition at the stage of admission was issued and accordingly I have heard Mr. Borkar Advocate for the Petitioner and Mr. Dani, Advocate for Respondent No. 1 who has entered appearance. Rule. Rule made returnable forthwith and heard by consent of the parties.
2. Petitioner is the original disputant in Dispute No. 629 of 2009 filed in the Cooperative Court No. 1 at Kolhapur. According to the Petitioner, the Opponent Nos. 2 to 42 Societies could not have been enrolled as members of the Opponent No. 1 Society and the Resolution No. 2 dated 26/3/2008 passed by the Managing Committee of the Opponent Society is void ab initio. The principal reliefs in the Dispute are a declaration that the Resolution No. 2 dated 26/3/2008 is void ab initio, illegal, ultravirus of the provisions of law of Opponent No.1; declaration that the Resolution No. 2 dated 26/3/2008 is incapable of being implemented and that no rights have accrued in favour of the Opponent Nos. 2 to 42 on the basis of the said resolution and a permanent injunction restraining the Opponent No. 1 from implementing the said resolution and for restraining the Opponent Nos. 2 to 42 from exercising their rights as members of Opponent No. 1.
3. In this Dispute some of the Opponents filed an application for rejection of the dispute under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908 on the ground that the Registrar has exclusive jurisdiction to decide as to whether the Opponent Nos. 2 to 42 were entitled to become members of the Opponent No. 1 Society. This application was contested by the Petitioner.
4. By the Judgment and Order dated 21/7/2010 the learned Judge of the Cooperative Court No. II, Kolhapur rejected the Dispute No. 629 of 2009 on the ground that the question of eligibility and non-eligibility of a person to become a member can be decided only by the Registrar under Section 11 of the M.C.S. Act, 1960. It was held that the issue involving dispute as to membership, expulsion and disqualification of the Managing Committee Members was outside the scope of Section 91 of the M.C.S. Act, 1960. Reliance was placed on the Judgment of the learned Single Judge
5. Aggrieved by the Order of rejection of the Dispute, the Petitioner filed A.O. No. 47 of 2010 in the Maharashtra State Co-operative Appelate Court, Mumbai at Pune Bench, which was also dismissed by the impugned Judgment and Order dated 14/7/2011 leading to the filing of the present Writ Petition.
6. Shri Borkar, learned Advocate for the Petitioner advanced the following submissions:-
(a) Provisions of Order 7 Rule 11(d) do not apply to Cooperative Court as Section 94 makes only certain provisions of C.P.C. as referred therein applicable to the dispute under Section 91. He relied on the Judgment of R.M.S.Khandeparkar, J in MurlidharDatoba Nimanka & ors. v/s. Harish Balkrushna Latane & ors. 2003(4) Mh. L.J. 196and the Judgment of M.S. Deshpande, J in P & T Central Co-op. Society Ltd. v/s. Judge, Co-operative Court, Nagpur & ors. 1987 Mh. L.J. 232in support of his first submission.
(b) That there cannot be an implied bar so as to exercise the power of summary rejection of the dispute. The bar contemplated by Order 7 Rule 11(d) has to be an express bar. In support of this proposition, he relied upon the Judgment of the Supreme Court in PremLala Nahata and Anr. v/s. Chandi Prasad Sikaria (2007) 2 SCC 551 and particularly paragraphs – 16 and 17 thereof.
(c) That the provisions of Section 11, 22 or 23 of the M.C.S. Act, 1960 have absolutely no application.
(d) That the Petitioner was complaining about violation of bye laws of Respondent No. 1 Society and there was no dispute as to the nature of business of the Respondent Nos. 2 to 42 and, hence, Section 11 has no application.
7. On the other hand, Mr. Dani, appearing for the contesting Respondent No.1 advanced following submissions.
(a) Relying on the notification dated 11/12/2003 issued by the High C
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