A.M. Khanwilkar, J. - (1.) THIS writ petition under Article 227 of Constitution of India is directed against the judgment of the Maharashtra Co -operative Appellate Court, Bombay dated 27th February, 1986 in Appeal No. 382 of 1984.
(2.) THE short question which arises for consideration in this case is whether the dispute filed by the petitioner Society was maintainable under Section 91 of the Maharashtra Co -operative Societies Act. Briefly stated the facts are that the petitioner Society had started a cloth shop at Daphalapur wherein the Respondent was working as an employee in the said shop. There is no dispute that the Respondent was in service of the Petitioner society at the relevant point of time. In June, 1977 the Petitioner Society decided to close the shop on account of heavy losses. At that point of time the Respondent by an application requested the society to dispose of all the stock lying in the said shop to him at a concessional rate. The said application was considered favourably by the Petitioner society and the Society passed Resolution on 7.9.1977 to hand over the entire stock to the Respondent at a concessional rate. The Petitioner decided to sell the stock to the respondent for total sum of Rs. 4989.35 along with dead stock, although the actual price of the said stock was about Rs. 19,166.50. The Petitioner asserts that because of the special relationship between the Petitioner and the Respondent that of an employer and employee and in recognition of the service rendered by the Respondent, the Petitioner decided to sell the stock to the Respondent at the subsidised rate by offering discount to the extent of 25% rebate. In the light of the said Resolution the stock was made over to the respondent, who in turn paid only an amount of Rs. four thousand and odd to the Petitioner Society. The Respondent, however, continued to remain in service till 30.9.1977 and appears to have resigned just before entering into a formal agreement with the Petitioner Society on 6.10.1977. Since the Respondent failed to pay the balance amount, the Petitioner Society filed a dispute under Section 91 of M.C.S. Act for recovery of sum of Rs. 17030.50 with future interest at the rate of 15.5% p.a. from the date of filing of the dispute till realisation. The Petitioner filed dispute before the Co -operative Court on the basis that the transaction in question was entered with Respondent being an employee of the petitioner Society at the relevant point of time. Both the parties, besides pleadings, adduced documentary as well as oral evidence. One Balasaheb was examined on behalf of the Petitioner Society. He deposed in the examination in chief that the transaction in question was entered between the Petitioner Society and Respondent on account of Respondent being the employee of the Petitioner society and he had sought concession from the Petitioner society being its employee. It appears that no question or suggestion was put to the said Witness on behalf of the Respondent to challenge the said version. In other words, the evidence laid on behalf of the Petitioner that the transaction in question, the basis of which the dispute has arisen between the parties, was entered by the Petitioner society with the Respondent being its -servant at the relevant time, pursuant to the application made by the Respondent seeking such benefit as an employee. Respondent though examined himself did not give any explanation in his evidence or refuted version of the Petitioner society that he was favoured by the Petitioner being its employee. On the basis of the pleadings and evidence adduced before the Co -operative Court, the Cooperative Court by its judgment and order dated 30.G. 1984 decreed the dispute and ordered recovery of a sum of Rs. 17030.50 ps. from the Respondent with future interest at the rate of 15.5% p.a. on Rs. 10346.06 from the date of filing of the dispute till realisation. No doubt, issue was raised before the Co -operative Court about the maintainability of the dispute, however, the Co -operative Court answered the same in favour of the Petitioner and held that the dispute as presented was maintainable.
(3.) BEING dissatisfied the Respondent took up the matter in appeal before the Maharashtra Co -operative Appellate Court, Bombay being Appeal No. 382 of 1984. The Co -operative Appellate Court decided the appeal only with regard to the issue of jurisdiction of the Co -operative Court to try and dispose of the dispute filed by the Petitioner. Since the Appellate Court concluded that the dispute filed by the Petitioner was not maintainable under Section 91 of the Act, therefore, allowed the appeal and was pleaded to set aside the order passed by the Co -operative Court regarding recovery and interest. The Appellate Court did not go into the merits of the dispute between the parties. The Petitioner Society has taken exception to the aforesaid decision of the Appellate Court holding that the dispute as filed by the Petitioner was not maintainable.;