D.K.SETH, J. - (1.) This appeal is directed against order dated 1st of September, 1999, rejecting the plaint, and the decree passed by the learned Assistant District Judge, 5th Court, Alipore, in Title Suit No. 218 of 1995. Facts:
(2.) The appellant as plaintiff has filed a suit being Title Suit No. 218 of 1995, in the 5th Court of Assistant District Judge, Alipore, for specific performance of a contract. The plaintiffs' case, inter alia, was that the plaintiff No. 1 had entered into an agreement for sale with the defendant Nos. 1 and 2, who are, admittedly, Housing Co-operative Societies. It was alleged that in 1970, the plaintiff No. 1 had sold 4.22 acres of land to the defendant Nos. 1 and 2 for valuable consideration. By an agreement for sale dated 19/05/1971 registered on 20/05/1971, the defendants agreed to sale the suit property to the plaintiff No. 1 or her nominees for the consideration mentioned therein. Various terms of the agreement were referred to. It was pointed out that 14 Cottahs of developed land was to be sold to the plaintiff or her nominees before distribution of plots among the members within the scheme of the Township development whereof was undertaken by the said defendants. Though, the plaintiffs had paid almost the entire consideration and were always ready and willing but the defendants had failed and neglected to transfer the property, though, at one point of time, they had agreed to grant those plots on permanent lease instead of sale in respect of the plots Nos. L-1, L-2, L-18 and L-19 respectively as shown in the development plan. In the schedule, the properties were described as respective plots together with easement right to paths, passage, roadways, watercourses, drains, sewers, electric lines etc. shown in the layout plan of the respective plots. 2.1 The defendants had entered appearance and filed their joint written statement. They had taken a ground as to the maintainability of the suit before a Civil Court, apart from various other objections raised therein. Issues were framed. The suit was ripe for peremptory hearing. At this stage, the defendants had filed an application under Order 7, Rule 11 read with Section 9 of the Code of Civil Procedure (CPC). The plaintiffs had filed its objection contending that the contract is independent of the object of the Co-operative Housing Society and is not concerned with the business or related to the affairs of the societies. This application was allowed by an order dated 1st of September, 1999 rejecting the plaint. It is against this order this appeal has been filed. Submission on behalf of the Appellants":
(3.) Mr. Anupam Chatterjee, learned Counsel for the appellants, submits that the defendants are admittedly Co-operative Housing Societies within the meaning of the definition given in Section 2(18) of the West Bengal Co-operative Societies Act, 1983 (1983 Act). The object of such society is to provide to its members with dwelling house, apartment or land for construction of dwelling houses or apartments or maintenance of common services in connection therewith and includes a federation of such societies. Therefore, an agreement for sale of such land to a person, who is not a member of the society, is not a transaction within the object of the society and as such does not form a dispute within the meaning of Section 95 of the 1983 Act. Unless it is a dispute concerning the business of the co-operative society, the same cannot be subject-matter of a reference under Section 96 of the 1983 Act. Therefore, a civil suit outside the scope of Section 95 cannot be hit by the bar of jurisdiction of the Civil Court provided under Section 134 of the said Act. 3.1 In order to decide a question under Order 7, Rule 11, C.P.C., the Court has to confine its consideration only on the averments made in the plaint. The Court cannot look into any other material. According to him, the averments made in the plaint do not ex facie disclose or show that the suit is barred by law being hit by the mischief of Section 134 of the 1983 Act. Therefore, Order 7, Rule 11, C.P.C. cannot be attracted. Inasmuch as, in order to determine the question, the Court has to look into some other materials as to whether the transaction is a part of the business of the co-operative society, for which reference is to be made to the object and Bye-laws of the societies. Therefore, it can be decided as a preliminary issue and not otherwise. 3.2 The provisions of Order 7, Rule 11, C.P.C. can be applied only at the admission stage, it does not apply at a stage after the written statement is filed and issues are framed. Once the issues are framed, such a question is to be gone into as a preliminary issue and not otherwise. 3.3 He then contends that assuming but not admitting, the Court finds that its jurisdiction is barred, then instead of rejecting the plaint, the Court has a duty to return the plaint for presentation before the appropriate Court. According to him, the Registrar empowered under Section 96 is a Court, since as such Registrar when he settles a dispute, he acts as a Civil Court. It was so held in various decisions that the Registrar is a Court while dealing with a dispute. Therefore, by reason of Order 7, Rule 10, C.P.C., the plaint should be returned instead of its rejection. According to him, the word Court' has not been defined either in the Code or in the General Clauses Act. It does not mean a Court established under the Bengal, Agra, Assam Civil Courts Act or a Court where proceedings are governed by the provisions of the Code. It includes a Court established by special statute when discharging its jurisdiction to decide a civil dispute capable of being a civil litigation, as is understood under Section 9 of the Code. The Registrar is vested with the power to decide the dispute finally, which has the effect of a decree, in view of Rule 179 of the West Bengal Co-operative Societies Rules, 1987 read with Section 98 of the 1983 Act. It has also the trappings of a Court in view of the fact that it is clothed with the jurisdiction of a Civil Court in respect of certain matters as conferred on it under Section 125 of the 1983 Act. Therefore, instead of rejecting the plaint, it ought to have been returned to the plaintiffs for being presented before the Registrar of Co-operative Societies, a Court within the meaning of Order 7, Rule 10. 3.4 In order to be a transaction concerning the business of the society, such transaction must be authorized by the primary object of the society. Unless it is so authorized, the transaction does not come within the purview of business of the society. In support he relies on the decision in Anjan Choudhary v. Anandaneer Co-operative Registered Housing Society, AIR 1990 Cal 380. .5 Mr. Chatterjee had also contended that in order to decide a suit being in the nature of specific performance of contract, requires an expertise of a Civil Court, which the Registrar or Arbitrator lacks and that such a relief cannot be had within the scope and ambit of a proceeding under Section 96 of the 1983 Act. 3.6 Mr. Chatterjee relied on the decisions in Jayanta Banerjee v. Beldanga Block 1, Co-operative Marketing Society, 1983 (87) Cal WN 638, Athmanathaswami Devas-thanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338; Deccan Merchant Co-operative Bank Limited v. M/s. Dalichand Jugraj Jain, AIR 1969 SC 1320; National Agricultural Co-operative Marketing Federation of India Limited v. Ram Narayan Tech Chand, 1988 (1) Cal HN 441; Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank Limited, AIR 1967 SC 1494 : (1967 Cri LJ 1380) and Rupchand Rajaram Shah v. Janata Consumers Co-operative Society Limited, AIR 1988 Bom 193, in support of his contentions. 3.7 For all these reasons, the appeal should be allowed and the order appealed against should be set aside. Submission on behalf of the Respondents :;