JUDGMENT
N.P. Chapalgaonkar, J.
1. This Second Appeal raises a question whether the dispute about the removing a member from the membership of a proposed Society which arose before the Society was registered could be decided by the Civil Court or it will to go before the machinery created under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “Co-operative Societies Act” for the purpose of brevity).
2. Plaintiff/appellant Kapurchand Jain filed Regular Civil Suit No. 187/1968 in the Court of Civil Judge (Junior Division), Amalner, against 13 persons describing them to be the members of Shri Dutta Co-operative Housing Society Ltd., Amalner (District : Jalgaon), for the following reliefs :—
(A) That, it be declared that the plaintiff is a member of the defendant Institution,
(B) Defendant Institution be directed to give accounts and amount of the profit.
(C) He be given 1/14th share of the land described in para 3 of the plaint by effecting partition, and
(D) In the alternative, Rs. 2,000/- for the costs along with interest thereon.
It is the case of the plaintiff that the plaintiff is the member of the defendant Institution and the defendant Institution has purchased land for dividing it into the plots and distributing to the members for building houses and accordingly permission for non-agriculture use was obtained and land was divided into different plots. Plaintiff further contended that according to the bye-laws, plaintiff has paid in all Rs. 1,481/-. Though one time he had paid Rs. 230/-, defendant raised a false dispute the plaintiff has paid only Rs. 200/- and not Rs. 230/ as required and on this pretext, defendants intimated to the plaintiff that he is dismembered and an amount of Rs. 1,481/- was sent to him by a cheque. However, this cheque was returned by the plaintiff and he demanded 1/4th share in the land purchased by the Institution. Plaintiff also approached to the District Deputy Registrar of the Co-operative Societies who replied to the plaintiff on 18th October, 1965 that the Society is not registered and, therefore, he has no jurisdiction to give any relief. Since the defendants did not respond to the request of the plaintiff, plaintiff filed the suit claiming his share in land Survey No. 801/1 admeasuring 30 Gunthas and another agricultural land Survey No. 736/1 admeasuring 1 Acre 22 Gunthas. Defendant raised a plea of jurisdiction in para No. 5 of the written statement and contended that the claim of the plaintiff can only be entertained under section 91 of the Co-operative Societies Act and the Civil Court has no jurisdiction to entertain the suit. They point out that defendant Society is registered as a Co-operative Society on 24th November 1967 and prayed for the dismissal of the suit.
3. The learned trial Judge was pleased to hold that the defendant No. 1 Society is a Co-operative Society properly incorporated with the limited liability and that the Civil Court has no jurisdiction to entertain this suit. Recording this finding, the learned Judge ordered the return of the plaint for presentation to the proper Court having jurisdiction by his order dated 24th February, 1981. Challenging this order in Regular Civil Suit No. 187/1968, an appeal was preferred before the learned District Judge at Dhule. The learned District Judge was pleased to hold that the primary and alternative claim made by the plaintiff were not within the competence of the Civil Court and dismissed the appeal vide his order dated 20th March, 1992. This Second Appeal challenges this judgment and order.
4. Admittedly when the dispute arose between the plaintiff and rest of the members of the proposed Housing Society, the Society in question was not registered one. In the plaint, the date of cause of action is mentioned, to be 18th October, 1965. The suit came to be filed on 2nd August, 1968 i.e. subsequent to the date of registration of the defendant Society (i.e. 24th November, 1967). Exhibit 73 is the certificate of registration dated 23rd January 1967 certifying that Shri Dutta Sahakari Graha Rachana Sanstha Maryadit, Amalner, District Jalgaon, has been registered under section 9(1) of the Co-operative Societies Act and is classified as Housing Society and sub-classified as “Tenant Ownership Housing Society” under section 12(1) of the Co-operative Societies Act read with Rule 10(1) of the Maharashtra Co-operative Societies Rules, 1961. It is also admitted fact that the plaintiff was dismembered by the Chief Promotor and other members of the proposed Society and whatever money was paid by him was tried to be refunded sometime in the year 1965 i.e. prior to the date of registration of the Society. The reliefs claimed by the plaintiff in this suit can be divided into two parts. The first part is regarding declaration that it be declared that he is member of the defendant Society and the second part is about the possession of 1/14th share in the property or damages in lieu thereof. Precise question before this Court is whether either of these reliefs was within the jurisdiction of the Civil Court and whether both the courts below have erred in ordering return of the plaint holding that the Civil Court has no jurisdiction.
5. Cardinal rule in respect of the jurisdiction of Civil Court is that the exclusion of the jurisdiction cannot be readily inferred. In Dhulabhai etc v. State of Madhya Pradesh & another, , Supreme Court was pleased to lay down principles regarding exclusion of the jurisdiction of the Civil Court. Learned Judges were pleased to observe that if the statute gives a finality to the orders of the special tribunals the Civil Court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. When there is express bar of the jurisdiction, or if the scheme of the Act makes the result of an enquiry decisive and if the statute creates a special right or liability and provides forum for determination of that right or liability and lays down that all relevant liability shall be determined by that Tribunal alone, the exclusion of the jurisdiction of the Civil Courts can be inferred. Tribunals do not have any right to entertain challenge to the statute. It was further laid down that the exclusion of the jurisdiction of the Civil Court is not readily available unless the condition set down in that judgment apply. If the dispute is between a member of a Co-operative Society and the Society or between other members of the Co-operative Society and one or more members of the Co-operative Society, then the said dispute will have to be decided exclusively under section 91 of the Co-operative Societies Act by the Co-operative Court. The crux of the contention raised by Shri Bora, learned Counsel appearing on behalf of the appellant, is that the dispute in question is not between the member of the Co-operative Society and a Co-operative Society or its other members. Admittedly, when the dispute arose, plaintiff was not a member of the Society and the Society in question was not a Society within the meaning of section 2(27) of the Co-operative Societies Act. Therefore, according to Shri Bora, Civil Court had jurisdiction to entertain the suit and both the courts below have erred in directing the return of the plaint.
6. The term “Society” has been defined in Clause (27) of section 2 of the Co-operative Societies Act to mean “a co-operative society registered, or deemed to be registered, under this Act”. Admittedly, the Society in question was merely a proposed Society and was not either a registered Co-operative Society under that Act or a Society which is deemed to have been registered under that Act. Section 91 of the Co-operative Societies Act lays down that notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the committee or its officers other than elections of committees of the specified societies including its officers, conduct of general meetings, management of business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to a Co-operative Court, if either both the parties thereto or either of them belongs to the categories mentioned in the said section. Sub-section (3) of the said section 91 lays down that save as otherwise provided under sub-section (2) of section 93, no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1). The description of the parties necessary to exclude the jurisdiction of the Civil Court at all places refers to the relation of the said individual with the Society. Therefore, existence of a Co-operative Society is the pre-condition of exclusion of the jurisdiction of the Civil Court and assigning that jurisdiction to the Co-operative Court under section 91. The question to be considered, therefore, would be whether, the dispute which arises before the registration of the Society will also have to be decided exclusively by the Co-operative Court, if the suit is filed after the registration of the Society.1
7. Shri P.R. Patil, learned Counsel appearing on behalf respondents 3, 6, 8, 9 and 11, contended that the real dispute is whether plaintiff was properly dismembered from the Society and whether he was entitled to continue as member of the Society. Even if this dispute has arisen before the registration of the Society, it really relates to the constitution of the Society since which member should be considered to be founder member of the Society at the time of the registration would be real question involved in this case. Therefore, according to him, the dispute is covered by the clause “any dispute touching the constitution” occurring in section 91. In Deccan Merchants Co-operative Bank Ltd. v. M/s. Dalichand Jugraj Jain & others, , Supreme Court was pleased to observed :
“It seems to us that before a person can be said to claim through a member, the claim should arise through a transaction or dealing which the member entered into with the society as a member.”
We will have to construe these observations to mean that when the dispute arose, the claimant should also be a member and he should have entered into the transaction as a member of the Society which was a Co-operative Society at that time. Same view was taken by the Supreme Court in the case of I.R. Hingorani v. Pravinchandra Kantilal Shah & others, . In this case ‘A’, the owner of a flat, entered into leave and licence agreement with ‘B’ in 1959. Subsequently in 1962, a Housing Society was formed and ‘A’ became its member. In 1963, ‘B’ applied for fixing his monthly “compensation” (Rent) and in that litigation it was contended by ‘A’ that the dispute be referred to the authority under the Co-operative Societies Act. It was held by the Supreme Court that ‘A’ and ‘B’ while entering into agreement, were not acting as members of the Society. Neither of them was member of the Co-operative Society which itself was not in existence at that time and, therefore, the case did not fall within section 91(1)(b) of the Co-operative Societies Act. In Gopibai & others v. M/s. Asnew Drums Ltd. & others, A.I.R. 1987 Bombay 344, the question before the Division Bench of this Court was arising out of the following facts. In 1962 a builder built a building consisting of few flats. One of them was taken by one Mahtani. After the construction of the building, the owners were to form a Co-operative Housing Society and steps were taken to get the Society registered. But before such registration, Mahtani, owner of one of the flats, entered into negotiations with respondent M/s. Asnew Drums Ltd. and an agreement was entered into by these parties for leave and licence on 24th September, 1962 allowing the use of the said flats by one of the Directors of the said Company. One of the terms of the agreement was that “The use of the flat shall be subject to rules and regulations of the proposed Co-operative Housing Society or of the building regulations framed by the Builders a copy of which is annexed herewith”. Admittedly, the Society came to be registered after this agreement. Because of the dispute between licensee and owner Mehtani, Mehtani sought eviction of the licensee. Licensee claimed protection of the Rent Act. Dispute was lodged with the Registrar of the Co-operative Societies and was referred to the Nominee (as per the provision as it was then). The jurisdiction of the Nominee was questioned. However, Nominee’s award came to be passed which was disputed before a Single Judge of the High Court. It was contended before him that the transaction between the parties has proceeded the formation of the Society and, therefore, it could not be said that the dispute related to the business of the Society. Sustaining this submission, the learned Judge was pleased to hold that the Nominee had no jurisdiction to decide the case. An appeal was taken out to the Division Bench and the Division Bench was pleased to dismiss the appeal unholding the view taken by the learned Single Judge. I am in respectful agreement with the above observations. Unless a dispute arises between a Society which has come into existence according to law and its members, or between one or more members on one side and one or more members on other side, the Co-operative Court will not get jurisdiction to decide the case. Prerequisite of deciding the dispute under section 91 of the Co-operative Societies Act is the existence of the Co-operative Society and existence of membership of such Co-operative Society.
8. Words “any dispute touching the constitution” appearing in sub-section (1) of section 91 of the Co-operative Societies Act relate to the Constitution of a society which has come in existence and not about the proposed constitution of a proposed society before its registration. Giving a wider meaning of these words will not be permissible in view of the rule that Civil Court should be presumed to have jurisdiction to decide all civil cases unless their jurisdiction is specifically or by necessary implication excluded. The intention of the legislature appears to be to create a special forum to decide disputes relating to Co-operative Societies. A proposed society is not a society within the meaning of section 2(27) of the Co-operative Societies Act.
9. Shri P.R. Patil, learned Counsel appearing for respondents 3, 6, 8, 9 and 11, submitted that it is desirable that the disputes about the proposed Society should also be decided by the Special machinery created under the Co-operative Societies Act since the parties intend to form a Co-operative Society and whether to grant a registration to the Society or not and regulate all ancillary matters is the domain of Registrar of the Co-operative Societies and Civil Court cannot decide such question. Therefore, disputes in respect of a proposed Co-operative Society or between the members of a proposed Co-operative Society also will have to go before the Co-operative Court specially created for the purpose. To consider the question of the desirability of such matters decided by the machinery specially created under the Co-operative Societies Act would be to enter into arena of jurisdiction of legislature. Unless there is a specific provision in the Co-operative Societies Act inserted by the legislature, the disputes arising before the registration of the Co-operative Society will have to be decided by the Civil Court.
10. In the result, appeal is allowed. Judgments and decrees passed by learned Assistant Judge, Dhule, in Miscellaneous Civil Appeal No. 27 of 1971 on 20th March, 1972 and of the learned Civil Judge (Junior Division), Amalner, in Regular Civil Suit No. 187 of 1968 on 24th February, 1981 are hereby set aside. Matter is remanded back to the trial Court. Regular Civil Suit No. 187 of 1968 is restored to the file of that Court. In view of the fact that the suit is fairly an old one, it is directed that the learned Judge shall dispose it of as expeditiously as possible and preferably within a period of six months from the date of receipt of writ of this Court. In the circumstances of the case, there shall be no order as to costs of this Second Appeal.