Dispute to be referred to Registrar of Co-operative Societies.

Bellie, J.

1. Both the L.P.A. and the C.R.P. arising out of one suit they can be disposed of in one common judgment.

2. The defendant is the appellant in the Letters Patent Appeal and the petitioner in the Civil Revision Petition. The plaintiff, the Co-operative Sugars Ltd., Chittur, filed the suit for recovery of a sum of Rs. 17,500. According to the plaintiff the defendant on 6.12.1969 agreed to supply 250 tons of sugarcane in the 1970 special season commencing from 15.6.1970 and again on 25.5.1970 he agreed to supply 100 tons of sugarcane in the 1970-71 main season commencing from October, 1970, to the plaintiff from the sugarcane grown in his fields. It was further agreed that in case the defendant fail to do so he would pay the plaintiff a penalty of Rs. 50 for every ton. The defendant failed to supply sugarcane as agreed and therefore he is liable to pay the plaintiff a total penalty of Rs. 17,500.

3. The defendant denied that he entered into any agreement with the plaintiff as alleged and the alleged agreement is not genuine. He also pleaded that the suit is barred by limitation. He further pleaded that the suit is barred by Cooperatives Societies Act.

4. The trial Court on consideration of the evidence accepted the defendants case that he did not execute any agreement as alleged and the documents filed by the plaintiffs are not genuine. On this finding the trial court dismissed the suit.

5. On appeal by the plaintiff, Sethuraman, J, in A.S. No. 330 of 1977 found that the defendant has actually grown only 100 tons of sugarcane in his field during each season and therefore he could supply only 100 tons in each season to talling to 200 tons and not more and for failure to supply this 200 tons the defendant is liable to pay a penalty of Rs. 10,000. Aggrieved, the defendant has filed the L.P A.

6. After passing of a decree for Rs. 10,000 by this Court, the plaintiff filed Execution Proceedings E.P. No. 269 of 1981 in the trial Court and the trial Court after recording a part satisfaction of Rs. 500 ordered arrest of the defendant. As against that the defendant had filed the C.R.P.

7. Mr. O.V. Baluswami, the counsel appearing for the appellant-defendant raises a preliminary point of law contending that the suit is not maintainable. According to the learned Counsel as per the provisions of Section 73 of the Co-operative Societies Act, 1961, the dispute should have been referred o the Registrar of Co-operative Societies for a decision and the civil suit should not have been filed. From the Judgment of the trial Court, we find that a contention as to the maintainability of the suit has been taken and issue No. 5 has been framed in this regard and as to this the learned trial Judge has stated as follows:

Any how place this point was not actually argued by the learned Counsel for the defendant. I answer this issue in favour of the plaintiff.

Considering this and the point raised being a question of law we allowed the learned Counsel to argue this point. It may be stated here, that the learned Counsel for the respondent-plaintiff had no objection to this. Now, from the records it is found and it is not in dispute that the defendant is a member of the plaintiff-society. A reading of Section 73 of the Tamil Nadu Co-operative Societies Act, 1961 would clearly show that if any dispute touching the business of the society arises between a member and the society the dispute shall be referred to the Registrar decision. In view of this provision the learned Counsel contends that the dispute in question should have been referred to the Registrar and the court has no jurisdiction to try this dispute. There is no doubt that there is a direction in Section 73 for referring a dispute to the Registrar. To quote the exact words used in the section:

Such dispute shall be referred to the Registrar for decision." the word "shall" sound significant. We are inclined to agree with the learned Counsel that though there are no express words in the Act tha