Case: Marine Times Publications Pvt. Ltd Vs. Shiriram Transport And Finance Co. Ltd. And Anr

the premises but he refused to do so. Thereupon, the bank applied to the District Deputy Registrar, Cooperative Societies, Bombay, praying that the dispute between the bank and the first respondent should be referred to arbitration under the provisions of Section 91 of the said Act. The Assistant Registrar passed an order to the effect that he was satisfied that there was dispute within the meaning of Section 91(1) of the said Act and he referred it for the decision of his nominee. The first respondent successfully challenged the order by a writ petition under Article 226 of the Constitution in the Bombay High Court. On appeal this Court held the when the original owner executed the lease he was not acting as a member but as a mortgagor in possession and, therefore, the claim of the bank did not fall within the provisions of Section 91(1)(b) of the said Act. This Court further took the view that the word "business" in the expression "touching the business of a society" in Section 91 does not mean "affairs of the society". It has been used in a narrower sense and means the actual trading of commercial or other similar business activity of the society which the society is authorised to enter into under the said Act and the rules and its bye-laws. 10. It appears to us that the submissions of learned counsel for appellant deserves acceptance. 11. Before a dispute can be referred to a Cooperative Court under the provision of Section 91(1) of the said Act it is not only essential that the dispute should be of a kind described in sub-section (1) of Section 91 but it is also essential that the parties to the said dispute must belong to any of the categories specified in clauses (a) to (e) of sub-section (1) of the said section. It is common ground that the parties to the dispute before us do not belong to any of the categories described in clauses (a) or (c) to (e) of sub-section (1) of Section 91 of the said Act and the only question is whether they can be held to be of any of the categories set out in clause (b) of the said sub-section. 12. We find that the appellant before us is a member of respondent 2, a cooperative society. Respondent 1 is not a member. The main question before us is whether the claim of respondent 1 in the dispute can be said to be one made against the cooperative society, being respondent 2, through the appellant, a member. On analysing the plaint it appears clear to us that the main claim of respondent 1 is for a decree or order for specifies performance of the agreement, whereby the appellant agreed to sell the said premises to respondent 1. The prayer for an order that respondent 2 Society should be directed to give their approval to the said transaction was merely a ancillary prayer made with a view to complete the relief of specific performance. As far as the claim to have the agreement specifically performed is concerned, we fail to see how it can be said to be a claim made by a person (non-member) against the society. The claim of respondent 1 against the society, as made in the plaint, cannot be said to be made through a member, the appellant herein, because it is only when a decree for performance of the said agreement is passed against the appellant, that it could be contended that the other relief, namely, for an order directing respondent 2 to approve the said transaction is claimed against the society through a member. Moreover, as we have pointed out that relief is only in the nature of ancillary relief, subsidiary to the main relief to specific performance. In our opinion, the dispute set out in the plaint cannot be said to fall within the scope of Section 91(1)(b) of the said Act and, in view of this, the learned Judge of the High Court was, with respect, in error in coming to the conclusion that both the parties to the dispute belonged to the categories covered under Section 91(1)(b) of the said Act. In our opinion, it is not necessary for us to decide whether the dispute in question was one "touching the business of the society" because even if that were so, it could not be referred to the Cooperative Court in the view which we have taken as set out earlier. 13. Learned counsel for respondent 1 drew our attention to the decision of this Court in O.N. Bhatnagar v. Rukibai Narsindas ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ) and submitted that in that judgment the scope of the expression "touching the business" was given a larger connotation than that given to it in the case of Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain ( 1969 (1) SCR 887 : 1969 AIR(SC) 1320 : 1970 (40) CC 187) discussed earlier. In our opinion, it is not necessary to consider the interpretation of the said expression here because, even assuming that the expression "touching the business of the society" has been given a wider connotation in O.N. Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ), as contended by learned counsel, it would make no difference to the result of the appeal in the view we have taken as we have based our conclusion on the construction of the provisions of Section 91(1)(b) of the said Act. The other decisions cited, namely, the decision of a Full Bench of the Bombay High Court in Leong v. Jinabai G. Gulrajami 1981 AIR(Bom) 244 : 83 Bom LR 299) and the decision of this Court in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. ( 1990 (2) SCC 288 ) are of no direct relevance to the question before us and hence, we do not fell called upon to discuss the same.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]12. We find that the appellant before us is a member of respondent 2, a cooperative society. Respondent 1 is not a member. The main question before us is whether the claim of respondent 1 in the dispute can be said to be one made against the cooperative society, being respondent 2, through the appellant, a member. On analysing the plaint it appears clear to us that the main claim of respondent 1 is for a decree or order for specifies performance of the agreement, whereby the appellant agreed to sell the said premises to respondent 1. The prayer for an order that respondent 2 Society should be directed to give their approval to the said transaction was merely a ancillary prayer made with a view to complete the relief of specific performance. As far as the claim to have the agreement specifically performed is concerned, we fail to see how it can be said to be a claim made by a person (non-member) against the society. The claim of respondent 1 against the society, as made in the plaint, cannot be said to be made through a member, the appellant herein, because it is only when a decree for performance of the said agreement is passed against the appellant, that it could be contended that the other relief, namely, for an order directing respondent 2 to approve the said transaction is claimed against the society through a member. Moreover, as we have pointed out that relief is only in the nature of ancillary relief, subsidiary to the main relief to specific performance. In our opinion, the dispute set out in the plaint cannot be said to fall within the scope of Section 91(1)(b) of the said Act and, in view of this, the learned Judge of the High Court was, with respect, in error in coming to the conclusion that both the parties to the dispute belonged to the categories covered under Section 91(1)(b) of the said Act. In our opinion, it is not necessary for us to decide whether the dispute in question was one "touching the business of the society" because even if that were so, it could not be referred to the Cooperative Court in the view which we have taken as set outour opinion, it is not necessary to consider the interpretation of the said expression here because, even assuming that the expression "touching the business of the society" has been given a wider connotation in O.N. Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ), as contended by learned counsel, it would make no difference to the result of the appeal in the view we have taken as we have based our conclusion on the construction of the provisions of Section 91(1)(b) of the said Act. The other decisions cited, namely, the decision of a Full Bench of the Bombay High Court in Leong v. Jinabai G. Gulrajami 1981 AIR(Bom) 244 : 83 Bom LR 299) and the decision of this Court in Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. ( 1990 (2) SCC 288 ) are of no direct relevance to the question before us and hence, we do not fell called upon to discuss the same