Mitter, J. - (1.) This is an appeal from a judgment and decree of the Patna High Court on a certificate granted by it.
(2.) The main question in this appeal is; whether the suit out of which this appeal arises was entertainable by a civil Court, in view of the provisions of S. 48 (1) read with S. 57 of tire Bihar and Orissa Co-operative Societies Act, 1935. Broadly speaking, Section 48 (1) enumerates disputes between certain classes of persons and/or the societies registered under the Act which have to he referred to the Registrar of Co-operative Societies for adjudication and S. 57 (1) provides that no civil Court shall have jurisdiction in respect of any dispute required by S. 48 (1) to be so referred. This point was not taken in the written statement of any of the defendants. The Subordinate Judge decreed the suit against several of the defendants including the Bank of Bihar Ltd. On appeal, the learned Judges of the Patna High Court concurred, in the main, with the findings of the Subordinate Judge but gave effect to the contention raised on behalf of two of the defendant-appellants on the basis of S. 48 (9) read with S. 57 of the Act. The appellants before this Court are the plaintiffs. The only contrasting respondents are the Bank of Bihar Ltd.. Madan Mohan Pandit and Babu Lal Varma (defendants 1, and 6 in the suit).
(3.) In order to find out whether Section 48 (1) embraces the dispute between the parties in this case, we have to examine the facts out of which this appeal arises. The first appellant, Bihta Comperative Development Cane Marketing Union Ltd. (hereinafter referred to as the Union), is a society registered under the Bihar and Orissa Co-operative Societies Act, 1935 (hereinafter referred to as the Act).- The second plaintiff was a Secretary of the Union at the time when the suit was filed in 1951. Under a Resolution, dated the 16th April 1947 of the Executive Committee of the Union, the defendant No. 6, Babu Lal Varma, Joint Secretary of the Union and Ram Janame Varma, defendant No. 7, the Treasurer of the Union, were jointly authorised to withdraw moneys of the Union from the 1st defendant, the Bank of Bihar Ltd., with which it had a running account. On the 28th of May 1948, defendant No. 6 and defendant No. 7 went to the bank to encash a cheque on behalf of the Union and then they came to learn that the funds in the account of the Union were not sufficient to meet the cheque. It appears that on the 16th of April 1948 a sum of Rs. 11,000 had been withdrawn from the said account by means of a cheque which did not come out of the cheque book of the Union and that a loose cheque form surrendered by an ax-constituent of the bank issued to someone on the 23rd March 1948 had been converted into a cheque purporting to bear the signatures of defendant No. 6 and defendant No. 7. It is not necessary to state the facts in detail and it will be sufficient to note that the spurious cheque bore the signature of defendant No. 7 but the purported signature of the defendant No. 6 thereon was found to be a forgery at the trial of the suit. Criminal proceedings were started and five defendants including defendants Nos. 6 and 7 were put on trial. Defendants Nos. 3, 4 and 5 were employees of the defendant bank. Ultimately, however, all the accused were acquitted. The suit was instituted by the two plaintiffs against seven defendants, all of whom have already been mentioned excepting the second defendant who was the Manager of the Bank and in charge of its affairs and management at the relevant time. The cause of action for the suit as against defendants 3 to 7 was that they, in collusion and conspiracy with one another had authorised an illegal withdrawal of Rs. 11,000 out of funds of the Union lying with the bank. The bank was sought to be made liable on the ground that it was a trustee for the Union and had abused the trust by allowing the amount in question to be embezzled through its gross negligence. All the defendants put in written statements, some doing so jointly while others did so individually. A large number of witnesses were examined and the Subordinate Judge came to the conclusion that the cheque in question was a forged and fabricated document and that defendants 4, 5 and 7 acting in collusion and conspiracy with one another had withdrawn the sum of Rs. 11,000 from the plaintiffs account with the bank fraudulently by means of the said forged cheque. He, however, thought that there was no sufficient evidence against defendants 3 and 6 and passed a decree as against defendants 1, 2, 4, 5 and 7 jointly. Defendants 1 and 2 only went up in appeal to the Patna High Court. The High Court agreed with the finding of the Subordinate Judge that defendants 4, 5 and 7 were parties to the conspiracy resulting in the withdrawal of the sum of Rs. 11,000, but absolved the defendant No. 2 from any liability on the round of negligence.;