Important Point – Procedure for deciding suit is different.

C.L. Soni, J.

By the present petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 2.9.2015 passed by the Board of Nominee, below application mark 48 in Lavad Suit No. 179 of 2015.

2. The respondent No. 1 has filed Lavad Suit No. 179 of 2015 initially against the Election Officer/In-charge Manager of Mehsana District Central Co-operative Bank Ltd. and the grievance voiced in such suit is as regards election of delegates from amongst the members of the said Bank. In such suit, the petitioners and other persons were subsequently joined as defendants.

3. The petitioners then preferred application Mark 48 on 24.8.2015, stating that the suit is time barred and does not disclose cause of action and the suit be ordered to be rejected by framing issues on above points. The Board of Nominee has rejected such application by impugned order dated 2.9.2015.

4. Learned advocate Mr. Desai for the petitioners submitted that when the suit cannot be entertained being barred by limitation, it could be said that the Board of Nominee has assumed the jurisdiction not vested with it and therefore, on preliminary issue of limitation, the suit could be rejected at the inception without even taking evidence of the parties. Mr. Desai submitted that Section 97 of the Gujarat Co-operative Societies Act, 1963 ('the Act') provides for filing of the lavad suit within prescribed time limit and when the suit is clearly time barred, it is required to be rejected by raising preliminary issue of limitation. Mr. Desai submitted that even the suit does not disclose cause of action and therefore, absence of cause of action in the suit would make the suit non-maintainable and therefore, by raising such issue as preliminary issue, the suit is required to be rejected. Mr. Desai submitted that learned Board of Nominee has committed serious error in not rejecting the suit on such two preliminary issues and thereby failed to exercise the jurisdiction vested with it.

5. Having heard learned advocate Mr. Desai for the petitioners, it appears that the petitioners wanted the suit to be rejected on the issue of limitation as also on the ground of non-disclosure of the cause of action and therefore, they preferred application at Mark-48 on 24.8.2015 like the application for rejection of the plaint under Order-VII Rule-11 of the Code of Civil Procedure, 1908 (the Code).

6. It is required to note that as per the provisions of the Act and the relevant Rules of the Gujarat Co-operative Societies Rules, 1965 ('the Rules') governing the procedure to decide the disputes by the Board of Nominee, there is no scope for rejection of the suit on the issues of limitation and non-disclosure of the cause of action like the one provided in Order-VII Rule-11 of the Code for rejection of the plaint. This Court had an occasion to consider the question whether the plaint of the Lavad Suit filed before the Board of Nominee under the Act could be rejected under Order-VII Rule-11 of the Code. Examining the provisions of Sections 97 to 99 of the Act and Rules 41,43 and 44 of the Rules, vis-a-vis provisions of Order-VII Rule-11 of the Code, this Court has held and observed in the case of Lokhandwala Irfanbhai Hanifbhai v. Dabhoi Mercantile Cooperative Society Limited reported in 2014(1) GLR 786, in para 7 to 21 as under:-

"7. Having heard the learned advocates for the parties and having perused the copy of the suit plaint with the application filed by the petitioner for rejection of the suit, it appears that the application at Exh. 16 is titled as an application under Order 7, Rule 11A and 11D of the Code for rejection of the suit. It further appears that the petitioner has resorted to the provision of Order 7, Rule 11 of the Code because there is no specific provision for rejection of plaint either in the Act or the Rules framed thereunder. The question therefore would be whether the provisions of Order 7, Rule 11 of the Code are applicable