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High Court Of Calcutta
D. K. SETH, JYOTESH BANERJEE
SISIR KANA GUHA - Appellant
Versus
AYAKAR GRIHANIRMAN SAMABAYA SAMITY LIMITED - Respondent
A. F. O. O. T. 3724 Of 1999
Decided On : 07/09/2002
CIVIL PROCEDURE CODE - Order 7, Rule 11 - Rejection of plaint - Plaint is to be rejected only when the conditions provided in Rule 11 are fulfilled - Order 7, Rule 11 and Order 7, Rule 10 are mutually exclusive - Order 7, Rule 10 cannot be attracted in a case covered under Order 7, Rule 11 - Order 7, Rule 10-A is subject to Rule 10 - Rule 10 cannot be construed independent of Rule 10-A in order to ascertain the meaning of Court contemplated in Rule 10 - Jurisdiction of Civil Court is barred in respect of dispute referred to the Registrar under Section 95 of the West Bengal Co-operative Societies Act, 1983 - Transaction concerning the business or relating to the affairs of a co-operative society is a dispute within the meaning of Section 95 of the Act - Such dispute is barred from being a subject matter of civil litigation before a civil Court - Such bar cannot be ascertained from the averments made in the plaint alone - It can be decided only having regard to the object and purpose as contemplated in the by-laws of the society and other materials.
Fact of the Case:
Plaintiffs filed a suit for specific performance of contract against the defendants, who are Housing Co-operative Societies. Plaintiffs alleged that they had entered into an agreement for sale with the defendants for purchase of land, which was developed by the defendants. The defendants appeared and filed a joint written statement, taking a ground as to the maintainability of the suit before a Civil Court, apart from various other objections raised therein. Issues were framed. The defendants filed an application under Order 7, Rule 11 read with Section 9 of the Code of Civil Procedure (CPC). The plaintiffs filed its objection contending that the contract is independent of the object of the Co-operative Housing Society and is not concerned with the business or related to the affairs of the societies. This application was allowed by an order dated 1st of September, 1999 rejecting the plaint. The plaintiffs filed an appeal against the order.
Finding of the Court:
The Court held that the plaint is to be rejected only when the conditions provided in Rule 11 are fulfilled. Order 7, Rule 11 and Order 7, Rule 10 are mutually exclusive. Order 7, Rule 10 cannot be attracted in a case covered under Order 7, Rule 11. Order 7, Rule 10-A is subject to Rule 10. Rule 10 cannot be construed independent of Rule 10-A in order to ascertain the meaning of Court contemplated in Rule 10. Jurisdiction of Civil Court is barred in respect of dispute referred to the Registrar under Section 95 of the West Bengal Co-operative Societies Act, 1983. Transaction concerning the business or relating to the affairs of a co-operative society is a dispute within the meaning of Section 95 of the Act. Such dispute is barred from being a subject matter of civil litigation before a civil Court. Such bar cannot be ascertained from the averments made in the plaint alone. It can be decided only having regard to the object and purpose as contemplated in the by-laws of the society and other materials.
Issues: Whether the plaint can be rejected under Order 7, Rule 11, C. P. C. after issues are framed. Whether Order 7, Rule 11 and Order 7, Rule 10, C. P. C. are mutually exclusive? Whether the ground of limitation is a factor for resorting to Order 7, Rule 10 instead of Order 7, Rule 11? Meaning of expression Court' in Order 7, Rule 10, C. P. C. Whether sale of land developed within the Township Scheme to a non member is a dispute : Is it clear from the averment made in plaint.
Ratio Decidendi: The Court held that the plaint is to be rejected only when the conditions provided in Rule 11 are fulfilled. Order 7, Rule 11 and Order 7, Rule 10 are mutually exclusive. Order 7, Rule 10 cannot be attracted in a case covered under Order 7, Rule 11. Order 7, Rule 10-A is subject to Rule 10. Rule 10 cannot be construed independent of Rule 10-A in order to ascertain the meaning of Court contemplated in Rule 10. Jurisdiction of Civil Court is barred in respect of dispute referred to the Registrar under Section 95 of the West Bengal Co-operative Societies Act, 1983. Transaction concerning the business or relating to the affairs of a co-operative society is a dispute within the meaning of Section 95 of the Act. Such dispute is barred from being a subject matter of civil litigation before a civil Court. Such bar cannot be ascertained from the averments made in the plaint alone. It can be decided only having regard to the object and purpose as contemplated in the by-laws of the society and other materials.
Final Decision: The appeal was allowed and the order appealed against was set aside. The suit was readmitted and remanded to the Learned Court below for fresh decision in the light of the observation made above.
( 1 ) THIS appeal is directed against order dated 1st of September, 1999, rejecting the plaint, and the decree passed by the learned Assistant District Judge, 5th Court, Alipore, in Title Suit No. 218 of 1995. Facts:
( 2 ) THE appellant as plaintiff has filed a suit being Title Suit No. 218 of 1995, in the 5th Court of Assistant District Judge, Alipore, for specific performance of a contract. The plaintiffs' case, inter alia, was that the plaintiff No. 1 had entered into an agreement for sale with the defendant Nos. 1 and 2, who are, admittedly, Housing Co-operative Societies. It was alleged that in 1970, the plaintiff No. 1 had sold 4. 22 acres of land to the defendant Nos. 1 and 2 for valuable consideration. By an agreement for sale dated 19/05/1971 registered on 20/05/1971, the defendants agreed to sale the suit property to the plaintiff No. 1 or her nominees for the consideration mentioned therein. Various terms of the agreement were referred to. It was pointed out that 14 Cottahs of developed land was to be sold to the plaintiff or her nominees before distribution of plots among the members within the scheme of the Township development whereof was undertaken by the said defendants. Though, the plaintiffs had paid almost the entire consideration and were always ready and willing but the defendants had failed and neglected to transfer the property, though, at one point of time, they had agreed to grant those plots on permanent lease instead of sale in respect of the plots Nos. L-1, L-2, L-18 and L-19 respectively as shown in the development plan. In the schedule, the properties were described as respective plots together with easement right to paths, passage, roadways, watercourses, drains, sewers, electric lines etc. shown in the layout plan of the respective plots. 2. 1 The defendants had entered appearance and filed their joint written statement. They had taken a ground as to the maintainability of the suit before a Civil Court, apart from various other objections raised therein. Issues were framed. The suit was ripe for peremptory hearing. At this stage, the defendants had filed an application under Order 7, Rule 11 read with Section 9 of the Code of Civil Procedure (CPC ). The plaintiffs had filed its objection contending that the contract is independent of the object of the Co-operative Housing Society and is not concerned with the business or related to the affairs of the societies. This application was allowed by an order dated 1st of September, 1999 rejecting the plaint. It is against this order this appeal has been filed. Submission on behalf of the Appellants":
( 3 ) MR. Anupam Chatterjee, learned Counsel for the appellants, submits that the defendants are admittedly Co-operative Housing Societies within the meaning of the definition given in Section 2 (18) of the West Bengal Co-operative Societies Act, 1983 (1983 Act ). The object of such society is to provide to its members with dwelling house, apartment or land for construction of dwelling houses or apartments or maintenance of common services in connection therewith and includes a federation of such societies. Therefore, an agreement for sale of such land to a person, who is not a member of the society, is not a transaction within the object of the society and as such does not form a dispute within the meaning of Section 95 of the 1983 Act. Unless it is a dispute concerning the business of the co-operative society, the same cannot be subject-matter of a reference under Section 96 of the 1983 Act. Therefore, a civil suit outside the scope of Section 95 cannot be hit by the bar of jurisdiction of the Civil Court provided under Section 134 of the said Act. 3. 1 In order to decide a question under Order 7, Rule 11, C. P. C. , the Court has to confine its consideration only on the averments made in the plaint. The Court cannot look into any other material. According to him, the averments made in the plaint do not ex facie disclose or show that the
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