- (1.) THIS is an appeal against on order of the Dy. Registrar, Co-operative Societies, Bikaner, dated 1. 8. 61 whereunder he admitted a dispute under sec. 61 of the Rajasthan Co-operative Societies Act 1953 (hereinafter referred to as the Act) in respect of the Raisinghnagar Cooperative Marketing Society Ltd. , Raisinghnagar and issued a notice to parties including M/s. Bhanwarlal Mahavir Prasad a firm of Grain and Commission Agents under Rule 35 of the Raj. Co-operative Societies Rules, 1957 (hereinafter referred to as the Rules) for nominating their respective arbitrators if they desire that the dispute be settled by the Board of Arbitrators. It has been contended on behalf of the appellants that they are carrying on business in the name and style of M/s. Bhanwarlal Mahavir Prasad and that Shri Surajmal, Rajas Rai and Shri Dungarmal are partners in the above firm. That on receipt of the above notice from the Dy. Registrar, they had informed the Dy. Registrar Vide a registered letter that no amount was due from them. But the Dy. Registrar without giving the details of the accounts and without giving them a chance to show cause admitted the dispute under sec. 61 of the Act. That the order of the Dy. Registrar was arbitrary and deserves to be quashed. It was also , contended in the memo that this Firm is not even a member of the above Society. '
(2.) DURING the course of the argument the following decisions were cited : - A. I. R. 1946 Bombay page 346 A. I. R. 1938 Patna page 373 A. I. R. . 1934 Patna page 145 A. I. R. 1927 Lahore page 24 A. I. R. 1938 Calcutta page 327 A. I. R. 1953 Swarastra page 177 At the very out set Shri Makhan Lal argued that the theory of the firm having been made a member of the Society by virtue of an application of Shri Bhanwar Lal, appellant in the present case and who is alleged to have applied for the partnership is incorrect in view of the fact that on the date Shri Bhanwar Lal applied for his partnership he was a minor. As a minor therefore, he had no authority to apply for the partnership nor was the Society entitled under its own bye-laws to enroll him as a member. In support of this plea Shri Makhan Lal has placed his reliance on a true copy of the application made by Shri Bhanwar Lal on behalf of the firm M/s. Bhanwar Lal Mahavir Prasad. This true copy has been placed at page 5 of the original File No. F. 7 (6) 30c/m DHB/61-62 of the year 1961-62. The age of the appellant on this true copy, it is alleged, has been shown as 12 years. It has been further argued by him that under the Bye-laws framed by this particular society under R. 6 of the Rules no one can become a member until he attains the age of 18 years. Ab initio therefore Shri Bhanwar Lal's application for the partnership of the above society should not have been considered. Sub-rule (c) of R. 3 of the Bye-laws of this Society are clear on the point and lay down that the age of the member can-notbe less than 18 years. In support of this point and besides the above argument reliance has been placed on two cases in which it has been held that no minor can become a member of the Co-operative Society. These are : - A. I. R. 1927 Lahore page 24 A. I. R. 1953 Sawrastra page 177 Government Advocate has nothing to say against this plea. He concedes that the age of the member should be 18 years and not less than that. We, therefore, do not consider it appropriate to discuss this point. What is material in the present appeal is whether on the date of this application Shri Bhanwar Lal was only 12 years old. The learned Govt. Advocate has interpreted this entry as unreliable and has referred to a certified copy of an application put up by Shri Bhanwar Lal in which his age was entered as 21 in respect of the registration of a sale deed. In any case the certified copy of that sale deed has not been placed on this file and we, therefore, do not propose to go at this stage into this particular question However, we find from the copy of the application that it is signed by Shri Bhanwar Lal for firm Bhanwar Lal Mahaver Prasad and the age 12 has been given against the name of Shri Mahaver Prasad who has been shown as a nominee. To our surprise we find that in this court of appeal the file received from the learned Dy. Registrar does not contain the original document and the Govt. Advocate was also silent when we questioned him on this score. It was explained to us that this forms a part of the proceedings taken in many other cases of the Dy. Registrar and hence only certified copies have been produced. We do not appreciate this attitude and feel that in the court of the appeal original document should have been produced. We expect that the learned Govt. advocate will kindly make a note of this and see that in future all the original papers as also the file are produced before us. Since the question of partnership by Shri Bhanwar Lal has been partly decided in another stay application we should like to leave the question of Bhanwar Lal's age on the date of application to the trial court to whom we are remanding this case. We would like the Dy. Registrar or Assistant Registrar, who may now deal with this file to delve deep into this question and to give his specific findings whether on the date Shri Bhanwar Lal presented this application he was 18 years or more, a ripe age entitling him to apply for partnership. If it is found during the course of the enquiry in the lower court that he was not, the question of his partnership would obviously not arise. We would therefore, leave this question without deciding. The other decisions cited by Shri Mahhan Lal are: - A. I. R. 1943 Bombay page 288 A. I. R. 1934 Patna page 145 A. I. R. 1946 Bombay page 346 All these lay down that no action can be taken against a person by a Cooperative Society unless he has been proved to be a member of such society. Since we have left the question open it would be relevant to examine these cases when the lower court has given specific finding on this issue, and it is not necessary to discuss at this stage the implication of the stay order about the partnership of Bhanwar Lal in that case. We find that the impugned order of the learned Dy. Registrar, Co-operative Societies is dated 1. 8. 61 and arises out of a reference made by the Raisingnagar Co-operative Marketing Society dated 10. 7. 61. On this date resolution was passed by the Society. From a reading of this resolution we find that it was passed in view of a letter No. 7313 dated 30. 6. 61 from the Dy. Registrar. This letter is not on the file and we are not in a position as to the reasons that prompted the Dy. Registrar to move the Raisinganagar Co-operative Marketing Society for passing such a resolution. This fact as it appears probably escaped the attention of the learned Government Advocate also. However, since the Co-operative Society had referred the matter of outstanding dues to the Dy. Registrar, action under Sec. 61 was the only course open to him on this reference. It would be relevant now to discuss the provision of Sec. 61 which lays down the procedure for referring a dispute to arbitration. Before we do so the provision of Rule 35 of the Rules shall have to be read together with Sec. 61 of the Act. Sub-rule (a) (i), (ii) and (iii) of rule 35 reads as below : - 35. Arbitration- (a) (i) when a dispute has been referred to the Registrar under sec. 61, the Registrar shall issue a notice to all parties, and unless any of them desires within 15 days of the issue of such notice that the matter be referred to arbitration, or unless the Registrar suspends proceeding under sub-sec. (2) of the said section he shall proceed to decide the dispute himself or make over the same for decision by his nominee. (ii) When any of the parties desires that the matter be referred to arbitration the Registrar shall call on each party to nominate its arbitrator within 15 days and to send a statement signed by the proposed arbitrator about his willingness to serve as an arbitrator. When there are more persons than one on each side, the principal party on each side will have the right to nominate the arbitrator. In such cases the Registrar will decide who is the the principal party and his decision shall be final. (iii) Where either of the parties fails to make a nomination within the period aforesaid the Registrar may nominate an arbitrator on behalf of such party. " A reading of sub-rule (a) (i) necessarily means that on reference of such a dispute the Registrar shall issue a notice to the parties. Government Advocate contends that the order of I. 8. 61 is itself a notice required under R. 35 and that no further notice necessary. His further contention is that the reply of Shri Bhanwarlal dated 23rd August, 1961 is available on p. 14 of the file in which Shri Bhanwarlal on behalf of firm Bhanwarlal Mahavir Prasad has asked for a week time. This indicates that such a notice was served and that the party was duly informed in lieu of the above provision. We do not agree to this plea and feel that before admitting this dispute it was obligatory on the part of the Dy. Registrar to have served a notice. In the last but one paragraph of the impugned order the dispute has been admitted. The order itself reads as under: - "the dispute is admitted under sec. 61 of the Raj. Co-operative Societies Act, 53 and a Notice is hereby given to all parties under R. 35 of the Raj. Co-operative Societies Rules, 1957 for nominating their respective arbitrators, if either of them so desire that the dispute be settled by a Board of arbitrators. We do not agree that the mandatory provision of R. 35 has been fulfilled. On the contrary we find that before actually appointing arbitrator the Registrar or Dy. Registrar is bound to serve two notices on the parties, one required under sub-Rule (i) and another under sub-rule (ii) of R. 35. Sub-rule (a) (i) is mandatory provision and it will not suffice if having admitted the dispute the Registrar proceeds to serve a notice under sub-rule (ii) asking the parties to nominate an arbitrator. To our mind, it does not matter which of the parties have in lieu of the notice asked for time and its asking for time cannot in any way mean to imply that the party has waived its right of a notice. The provision of law is mandatory in this regard and the Registrar was bound to have served a preliminary notice before admitting the dispute with a view to give the parties an opportunity to show cause as to why the matter be not referred to arbitration. Since such a notice has not been served upon the parties in this particular case we find that the order of the Dy, Registrar is basically lacking in fulfilling the requirements of law. It is therefore not maintainable and we consider that two notices are necessary as provided under sub-rule (a) (i) and (ii) of R. 35 of the Rules read with sec. 61 of the Act. We therefore, accept the appeal, set aside the order of the learned lower court and direct that action as above may be taken. We would also be failing in our duty if we do not make a note about the manner in which the record of the case has been put up before us. We, however, hope that in future the original record of the case in appeal will be brought before us instead of certified copies. . ;