1. In this petition under Article 226/227 of the Constitution of India, the petitioner has challenged order dated 21.9.2012 passed by learned Board of Nominees below application Exh. 16 in Lavad Suit No. 837 of 2010 whereby learned Board of Nominees rejected the said application filed by the petitioner under Order 7, Rule 11 of the Code of Civil Procedure (“the Code” for short).

2. Copy of the Lavad Suit No. 837 of 2010 before the Board of Nominees filed by respondent NO.1 society is annexed at annexure-A to the petition. The said suit is filed for recovery of Rs.5,88,000.00 against the present petitioner and another person (defendant No.1) stating that the petitioner and defendant No.1 were serving as clerk and head clerk respectively in the society and they were responsible to obtain voucher from the customers, get it compared with the signatures on the challan, verify the balance in the accounts and to hand over the same to the cashier after making entry of credit/debit in the account and to maintain all type of balance registers, to make posting in the accounts and such other works as may be entrusted by the manager. It is further stated that during the audit, the petitioner and defendant No.1 were found to have misappropriated the amounts of the society for which criminal complaint is filed against them in the Court of the learned Judicial Magistrate, First Class at Dabhoi.

3. In the said suit, petitioner filed application at Exh. 16 titling the same as an application under Order 7, Rule 11-A and 11-D of the Code praying to reject the suit on the ground that the suit is premature and there is no cause of action for filing the suit till it is not proved in the criminal case that the petitioner has committed an offence of misappropriation. Thereafter, the petitioner filed written statement at Exh. 22 on 28.4.2012.

4. The said application of the petitioner was opposed by respondent no.1 society on the ground that the society has filed the suit on the basis of the audit of the society and the application for rejection of the suit is only to delay the suit. Respondent No.1 also contended that the provisions of Order 7, Rule 11 of the Code would not be attracted and, therefore, the application Exh. 16 was required to be rejected.

5. The learned Board of Nominees came to the conclusion that though the criminal case was yet to be decided, still the civil dispute could be brought before the Board of Nominees. Learned Board of Nominees also recorded that there was no good reason to take a view that the provisions of Order 7, Rule 11 of the Code will be attracted. Learned Board of Nominees accordingly rejected the application Exh. 16, as stated above.

6. I have heard the learned advocate Mr. Majmudar for the petitioner. Mr. Majmudar submitted that the main ground on which the suit for recovery of Rs.5,88,000.00 was filed against the petitioner and other defendants is that the petitioner and other defendants misappropriated the amount of respondent no.1 society and in respect of such misappropriation, the society has filed criminal complaint. Mr. Majmudar submitted that so long as it is not decided by the court in the criminal proceedings filed against the petitioner that the petitioner has committed an act of misappropriation, respondent No.1 has no cause of action to file the suit for recovery of the above amount. Mr. Majmudar therefore submitted that the Board of Nominees has gravely erred in rejecting the application filed by the petitioner under Order 7, Rule 11 of the Code. Mr. Majmudar submitted that the learned Board of Nominees has committed serious error in holding that the provisions of Order 7, Rule 11 of the Code are not attracted. Mr. Majmudar submitted that though the provisions of the Code will not be applicable to the proceedings of the suit filed under the provisions of the Cooperative Societies Act, 1961 (“the Act” for short) stricto senso, still the proceedings before the Board of Nominees are governed b