:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDDER NO.708 OF 2006 APPEAL FROM ORDDER NO.708 OF 2006 APPEAL FROM ORDDER NO.708 OF 2006 Godavari Urban Co-operative Bank Ltd. ...Appellant. v. Shri Ravindra Sukdeo Matale ...Respondent. Mr.R.M.Hariram i/by Shri Pramod N. Joshi , advs. for the Appellant. Mr.S.N.Patil i/by Shri A.D.Avhad , advs. for the Respondent. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 2nd April, 2008. DATE: 2nd April, 2008. DATE: 2nd April, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. The appellant is the original plaintiff and the co-operative bank. According to the appellant, the respondent/defendant was having saving account with the plaintiff/bank and used to have transactions pertaining to that saving account. On 11-4-2002, the defendant deposited a cheque dated 7-3-2002 of Rs.1,50,000/- in his account. The cheque was sent for clearing purpose on 12-4-2002. As the cheque was not returned from the clearing house for three days, as per the normal practice, plaintiff/bank presumed that the cheque must have been cleared and on that presumption, an amount of Rs.1,50,000/- was credited to the saving account of the respondent. On 16-4-2002 respondent withdrew that :2: amount of Rs.1,50,000/- from that account. However, on the next day, the cheque was returned to the appellant/bank from the clearing house with endorsement "payment stopped by the drawer." According to the appellant, in view of these circumstances, payment of Rs.1,50,000/- made by the appellant to the respondent was not correct and the appellant is entitled to recover that amount. With these pleadings, the appellant/bank filed Special Civil Suit No.51 of 2005 in the Court of Civil Judge Senior Division, Nashik. Respondent appeared and contended that the Civil Court had no jurisdiction to entertain the suit because the dispute could be filed only before the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act. After hearing the parties, the learned trial Court came to conclusion that the Civil Court has no jurisdiction and the jurisdiction is with the Co-operative Court. With these observations, Civil Judge Senior Division passed the order dated 27-7-2006 and directed to return the plaint to the plaintiff for presentation before the Co-operative Court at Nashik. That order is challenged in the present appeal. 3. The learned counsel for the respondent/defendant vehemently contended that as per bye-law no.10 of the appellant/bank, the defendant/respondent is nominal member of the bank and because the dispute is between the bank and its member, jurisdiction lies with the :3: Co-operative Court under Section 91 of the Co-operative Societies Act and the jurisdiction of the Civil Court is excluded under Section 163 of the said Act. On the contrary, the learned counsel for the plaintiff/appellant contended that as the respondent was neither a member nor a borrower, the dispute could not be filed under Section 91. According to the bank, respondent was only having saving account and by mistake, an amount of Rs.1,50,000/- was credited to his account and the payment was actually taken by him and, therefore, suit can be filed before the Civil Court. 4. It is well settled that under Section 9 of the Civil Procedure Code, Civil Court shall have jurisdiction to try all suits of civil nature excepting suits in respect of which jurisdiction of civil Court is expressly or impliedly barred. Under Section 163 of the Maharashtra Co-operative Societies Act, the Civil Court shall have no jurisdiction in respect any dispute required to be referred to the Co-operative Court for decision. Section 91(1) provides the circumstances in which the dispute can be filed in co-operative Court. It reads as follows: 91. (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, election of the committee or its officers other than elections of committees of the specified societies including its officers, conduct of :4: general meetings, management or 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 both the parties thereto are one or other of the following :- (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society or the Official Assignee of a de-registered society; (b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society or person who claims to be a member of the society; (c) a person other than a member of the society, with whom the society has any transactions in respect of which any restrictions or regulations have been imposed, made or prescribed under section 43, 44 or 45, and any person claiming through such person; (d) a surety of a member, past member or deceased member, or surety of a person other than a member with whom the society has any transactions in respect of which restriction have been prescribed under section 45, whether such surety or person is or is not a member of the society; (e) any other society, or the Liquidator of such a society or de-registered society or the Official Assignee of such a de-registered society; 5. Admittedly, the respondent was not a borrower or a surety of a member of the bank. Of-course, if he would be a member, dispute between the society and member could be referred to Co-operative Court within clause (b). Respondent has not produced any document to :5: show that he was member of the appellant/bank. It is specific contention of the appellant that the respondent was not a member. Contention of the appellant is that respondent is only an account holder and he has saving account. He could deposit money in the said account and also withdraw the same. He could deposit cheques for the purpose of encashment or could have other transactions, which are possible if there is saving account. As per sub-rule 4(5), nominal member means a person, who is accepted as such by the bank under bye-law no.10. Bye-law no.10 provides as to who may be nominal member. A person who is the member of joint family which is member of the bank or who is a surety of the borrower member or who has taken loan by pledging or hypothecating certain movable properties has to be made a nominal member. An employee of the bank may also be a nominal member. There is nothing to show that a person, who opens saving account with the bank is also required to be a member or nominal member of the bank. 6. It is clear that the respondent was only account holder with the appellant/bank but was not a member. He was admittedly not a borrower or surety of member. In these circumstances, dispute could not be filed before the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act. From the facts pleaded by the plaintiff/appellant, it is clear that the plaintiff/bank had wrongly credited the amount in the :6: saving account of the respondent under the presumption that the cheque deposited by the respondent must have been honoured and after the amount was credited, respondent had withdrawn the money. However, later on, it was revealed that the cheque was dishonoured as the payment was stopped by the drawer. Thus, even though the cheque was dishonoured, payment was made by the appellant/bank to the respondent by mistake. As the wrongful payment was received by the defendant, the respondent/appellant is entitled to recover the same. For this a suit could be filed in the Civil Court. There is nothing in Section 163 or any other provisions of the Maharashtra Co-operative Societies Act, which takes away the jurisdiction of the Civil Court to entertain such a suit. 7. Taking into consideration all the circumstances, it is clear that the trial Court committed error in holding that it had no jurisdiction. 8. In the result, appeal is allowed. Impugned order is hereby set aside and the trial Court is directed to proceed with the suit and dispose it off as early as possible. :7: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)