1 ao114.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 114 OF 2011 WITH CIVIL APPLICATION NO. 7776 OF 2011 Optical House a proprietary firm, Through its proprietor, Sudhir Vijay Shastir, R/o. 4-12-101, Nageshwarwadi, Aurangabad, Tq. & Dist.Aurangabad and others. ...APPELLANTS VERSUS Ajanta Urban Co-operative Bank Ltd., Aurangabad, a body corporate constituted under the provisions of Maharashtra Co-operative Societies Act, having its Head Office at Zambad Heights, Jadhavmandi, Aurangabad through its Branch Manager and others. ...RESPONDENTS ... Mr. U.R. Kulkarni, Advocate for appellants. Mr. S.G. Dodya, Advocate for respondent No.1. ... CORAM: S.S. SHINDE, J. DATE : 28TH JULY, 2011 PER COURT : Heard learned Counsel appearing for the 2 ao114.11 appellants. 2. Learned Counsel appearing for the appellants invited my attention to Section 164 of the Maharashtra Co-operative Societies Act, 1960 (For short, "the said Act") and submitted that, there is no bar to file suit. Only requirements are provided in Section 164 of the said Act to issue notice. Accordingly, notice was given to the respondents and then suit was filed. Learned Counsel further invited my attention to the recovery certificates and submitted that, the Assistant Registrar has not considered the evidence brought on record and perverse findings are recorded. Learned Counsel for appellants invited my attention to the grounds taken in the appeal which are as under: (A) The impugned judgment and order under appeal is erroneous, unjust and against the well established principles of law and equity and deserves to be quashed and set aside by the Hon'ble 3 ao114.11 Court. (B) The learned Civil Judge, Senior Division, Aurangabad failed to appreciate and apply the sound principles of law about ousting the jurisdiction of the Civil Court and arrived at a wrong conclusion and recorded a perverse finding that it has no jurisdiction which is required to be corrected. (C) The case law referred and relied by the defendants is not applicable to the facts of the present case. The learned trial Court miserably failed to appreciate the legal ratio laid down in the authorities of Kaushalya Sampat Versus Vasant Sahakari Bank and Kedarling Vikas Seva Society Versus Dinkar Bhimrao Raut. (D) Admittedly the jurisdiction of the Civil Court is not totally ousted for the matters which do not fall in the ambit and jurisdiction of Section 91 of Maharashtra Co-operative Societies Act. Admittedly the declaration about the void recovery certificates is prohibited 4 ao114.11 to be challenged under Section 91 of Maharashtra Co-operative Societies Act which relates to dispute, touching to the business of the society. The provisions of Section 101 of Maharashtra Co-operative Societies Act cannot be invoked by the appellants and the revisional jurisdiction under Section 154 of Maharashtra Co-operative Societies Act by the appellants. Under these circumstance and the provisions of Maharashtra Co-operative Societies Act it is the civil court alone which has jurisdiction to entertain such disputes falling out of the scope of Section 91, 101 and 154 of Maharashtra Co-operative Societies Act. The learned trial court failed to interpret the above provisions of law and recorded a perverse finding about a jurisdiction. (E) Admittedly the remedy under Section 154 of the Maharashtra Co-operative Societies Act is pending adjudication before the Joint Registrar Co-operative Societies, Aurangabad. It indicates that, the recovery certificates issued by the respondent No.2 have not attended 5 ao114.11 the finality and so there is not bar or restriction on the rights of the civil courts to adjudicate the dispute of declaration of such inconclusive recovery certificates. Thus refusing to exercise the jurisdiction of the court by the Lower Court amounts to a perversity of law on the face of record which is required to be corrected by the invoking the appellate jurisdiction of the Hon'ble Court. (F) In the matter of Kaushlya Versus Vasant Sahakari Bank Ltd., the issue of depositing 50% amount to invoke the jurisdiction was in issue and in that reference the ration laid down and the validity of the provisions of section 17 of Securitization act were discussed by the court. in the present case the constitutional validity of section 154 of Maharashtra cooperative societies act is not challenged an at all so the said ration of the case redundant in the present matter. G) In the matter of Kedarling Vikas Society Versus Dinkar Raut, a dispute was filed under section 91 of 6 ao114.11 Maharashtra Cooperative Societies Act challenging the validity of certificate challenged under section 101 of Maharashtra Cooperative Societies Act. Admittedly by amending Section 101 and 91 of Maharashtra Cooperative Societies Act, the jurisdiction of Cooperative Court to challenge the validity before the cooperative court is excluded but the said amendment does not exclude the jurisdiction of the Civil Court by any stretch of imagination. Thus applying the ratio laid down in this case the learned trial court has held that, the suit is not maintainable impliedly. This erroneous approach and interpretation is perversity of law and it is allowed to stand on record it will amount to abuse of process of law, resulting in miscarriage of justice causing hardship and inconvenience to the appellants and closing the legitimate doors of the forum to knock their grievances before the Civil Court. For this reason the invocation of appellate jurisdiction is indispensable. H) Admittedly the provision of 7 ao114.11 Maharashtra Cooperative Societies Act is self contended code providing a complete machinery for redressal of grievances between the society and members of the society. The same at does contents the selective provisions of Code of Civil Procedure are made applicable for issuing the summons, accepting the documents, evidence on affidavit etc, but the provision of Section 9(a) of the Code of Civil Procedure are not engrafted in Maharashtra Cooperative Societies Act. In these set of circumstance it cannot be said that the provision of Section 9(a) of Code of Civil Procedure are applicable or the legislatures intend to engraft the same impliedly in the provision of Maharashtra Cooperative societies Act. Thus when the original act does not have provisions to decide the issue of jurisdiction, entertaining any such application by the court below amounts to an act without jurisdiction and hence the impugned judgment and order under appeal suffers the jurisdictional error on the face of record for which the invocation of appellate jurisdiction is just and necessary. 8 ao114.11 (I) Admittedly Section 163 of Maharashtra Cooperative Societies Act creates a bar of the jurisdiction of the Civil Court when the matters are adjudicated in accordance with the provisions of Maharashtra Cooperative Societies Act and rules framed there under, relating to dispute between society and its members. (J) Admittedly the dispute about the statement of accounts is not adjudicated as per the mandatory provisions of law and has not attended the finality. The said certificates are obtained by concealment of fact, misleading statements and using fabricated statement of accounts. The challenging the recovery certificates under Section 91 is expressly barred by the Maharashtra Co-operative Societies Act but under the provisions of section 164 of Maharashtra Cooperative Societies Act, the claims which are out of the ambit of Section 91 can be filed before the Civil Court. This legal proposition has been totally ignored by the court below to refuse the jurisdiction vested 9 ao114.11 in it which is required to be corrected by the Hon'ble Court. (K) Admittedly for determining the issue of jurisdiction the contentions in the plaint are required to be taken into consideration and not the defence. Admittedly the respondent have not filed any written statement nor laid any evidence. The plaintiffs/appellants filed their documentary evidence on record and affidavit in support of it and alongwith pursis to treat this evidence to adjudicate the preliminary issue. This evidence has gone unchallenged. On the basis of specific averment made about the fraudulent documents and illegality of the contract the plaintiffs/appellants made out the case of jurisdiction which ought to have been accepted by the court below. Failure to do so has resulted in miscarriage of justice which required to be corrected. 3. According to the learned Counsel for appellants, when there are disputed questions of facts, same can be adjudicated only by the Civil 10 ao114.11 Court and said exercise is not possible either in the revisional jurisdiction or in writ jurisdiction. Therefore, suit filed by appellants should have been entertained. 4. On the other hand, the learned Counsel appearing for respondent No.1 submits that, the appellants did file revision under Section 154 of the said Act and averments in the said revision are identical to the averments in the suit. It is further submitted that in view of provisions of sub section - 3 of Section 163 of the said Act, jurisdiction of the Civil Court is ousted, if the order is passed by any authority under the Act, remedy of revision is provided. Learned Counsel in support of his contention that jurisdiction of the Civil Court is ousted, placed reliance on the following judgments. (1) Shere-E-Punjab Co-operative Housing Society Ltd., and others vs. G.W. Society and others, reported in A.I.R. 1974 Bombay 269. 11 ao114.11 (2) Vidarbha Weavers Central Co-operative Society Ltd., Nagpur vs. Civil Judge, Senior Division,Nagpur and others reported in 1992(1) Mh.L.J. 23. (3) Satguru Construction Co. Pvt. Ltd., and others vs. Greater Bombay Co-operative Bank Ltd., reported in 2007(5) Bom.C.R. 810. (4) Arun B. Khanjire vs. Ichalkaranchi Urban Co-op. Bank Ltd. and others reported in 2009(2) Bom.C.R. 156. . Relying on the above mentioned judgments, learned Counsel for respondent No. 1 submitted that, the impugned order cannot be faulted and this Court may not interfere with the impugned order. 5. I have given due consideration to the submissions of the learned Counsel for respective parties. At the outset, it would be appropriate to refer to the provisions of sub section (3) of 12 ao114.11 Section 163 of the Maharashtra Co-operative Societies Act, 1960. Sub section (3) of Section 163 of the Maharashtra Co-operative Societies Act, 1960 reads thus : "163. Bar of Jurisdiction of Courts. (1) ..... (2) ..... (3) All orders, decisions or awards passed in accordance with this Act or the rules shall, subject to the provisions for appeal or revision in this Act be final; and no such order, decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any Court upon the merits or upon any other ground whatsoever." 6. Bare perusal of sub section (3) of the said Act would clearly show that, orders, decision or award passed in accordance with Maharashtra Co-operative Societies Act, 1960 or rules can be challenged by way of filing appeal or revision as 13 ao114.11 provision to file such appeal/revision is incorporated in the said Act. In that case, jurisdiction of the Civil Court is ousted. It is not in dispute that the appellants herein did file revision under Section 154 of the said Act. . I find considerable force in the arguments advanced by learned Counsel for respondent No.1 that point raised in this Appeal from Order is no more res-integra and covered by the authoritative pronouncements of this Court. That apart, the impugned order refers to at least three decisions of this Court and conclude that the civil suit is not maintainable. 7. Under Section 154 of the said Act, specific remedy of revision is provided by the Legislature to challenge the decision of the Assistant Registrar. In that view of the matter, in my opinion, invoking jurisdiction of the Civil Court was not permissible and the Civil Court has rightly concluded that the Court has no 14 ao114.11 jurisdiction to entertain the suit. No interference is called for. Appeal from Order stands dismissed. Consequently, the Civil Application stands rejected. [S.S. SHINDE, J.] sut/JUL11