Important Point—Money decree can be passed against society which is engaged in profit making out of some commercial transactions.

Deepak Maheshwari, J.

1. This appeal has been preferred by defendant-appellant to assail the judgment and decree dated 23rd December, 1995 passed by learned Additional District & Sessions Judge No. 4, Jaipur City, Jaipur in Civil Original Suit No. 160/1985 whereby, learned trial Court dismissed the suit for specific performance but decreed the sum of Rs. 1,46,374.58/- in favour of the plaintiff along with 18% per annum interest thereupon till realization of the money.

2. Briefly stating the facts of the case giving rise to this appeal are that the plaintiff being a registered company under Companies Act entered into agreement with the defendant - Society registered under Societies Act to purchase 50 residential plots and paid a sum of Rs. 6,56,855/- as advance. The plots were to be allotted in Nemisagar Colony. Defendant - Society allotted the plots worth Rs. 3,41,986.86/- only. It neither returned the money nor allotted plot for the remaining amount. Notice under Section 143 of the Rajasthan Cooperative Societies Act was given on 30th December, 1983 but of no avail. Hence, the suit was filed.

3. By filing written statement, defendant No. 1 - Society denied the facts mentioned in the plaint and also the fact of the oral agreement with the Company to allot 50 plots. It was, however, stated that one T.C. Kothari paid the amount for 13 plots which were accordingly allotted to the concerned persons. It was also stated that defendant entered into a compromise with the plaintiff but plaintiff did not turn up to get the money back. Reply to the notice was also sent to the plaintiff.

4. Defence of defendant No. 1 was closed on 20th December, 1989. Defendant No. 2 was proceeded ex-parte vide order dated 26th July, 1987. No evidence was adduced on behalf of the defendants. Issues were also not framed, as the defence of the defendants was closed.

5. Learned counsel appearing for the appellant has argued mainly on the ground that the learned trial Court has committed a jurisdictional error in light of the provisions contained in Section 75 of Rajasthan Cooperative Societies Act, 1965 to which corresponding provisions is Section 58 in the Cooperative Societies Act, 2001. He has contended that on one hand, learned trial Court has treated the plaintiff to be allottee of the plots and thus, member of the society and on the other hand, it has been decided that the provisions of Section 58 of Rajasthan Cooperative Societies Act, 2001 are not applicable in the matter in hand. In view of the above said provision, the jurisdiction lies only with the Registrar of Cooperative Societies and Civil Court is barred from entertaining any such dispute. It has also been contended that learned trial Court has erred in awarding the amount of interest against the Society which is not conducting any business or commercial activities. Moreover, excessive rate of interest @ 18% per annum has been awarded. It has also been stated that proper opportunity of hearing was not afforded to the defendant.

6. None has appeared on behalf of the respondent-plaintiff Company to contest this appeal.

7. In light of the arguments advanced by the learned counsel for the appellant before this Court, the judgment impugned and the evidence available on record was critically examined.

8. Insofar as applicability of Section 58 of the Rajasthan Cooperative Societies Act, 2001 to the matter in hand is concerned, learned trial Court has inferred that if any dispute arises between the members of the Society and the Society or its office bearers touching the constitution, management or business of the Cooperative Society, then only it shall be referred to the Registrar and the jurisdiction of the Civil Court shall be barred. But the subject matter of this suit is not a dispute touching the constitution, management and business of the Cooperative Society. It has been further held that the plaintiff - Company is not a member of the Society, hence Section 75 (now Section 58 of the Act of