SHETKARI SAHAKARI SANGH LTD Vs. KARVEER TALUKA SHETKARI KHAREDI VIKRI SANGH LTD

JUDGEMENT

(1.) THIS appeal arises out of the judgment and award in dismissal of the dispute on 20-10-1989 by the co-operative Court No. I, Kolhapur.

(2.) THE facts of the case in brief are as follows ; the appellant is a Co-operative Federation Limited named as Sri shetkari Sahakari Sangh Ltd. , Kolhapur. First it had filed this case against the Respondents-Karveer Taluka Shetkari Sahakari Kharedi Vikri Sangh Ltd. , and Kolhapur Killa Madhyavarti Sahakari Bank Ltd. , of the same place. In February, 1979 they added the Respondent No. 3 i. e. Maharashtra Government. in Department of Co-operation as a Co-defendant. They claimed in this dispute that the defendant No. 1 Karveer Taluka Shetkari Sahakari Kharedi vikri Sangh Ltd. , was liable to pay them Rs. 5,87,506. 70 as dues in their accounts as on 30-6-1976, and the interest they have claimed from this defendant till 30-11-1976 in Rs. 32,840. 02 at the rate of 12% per annum. They had first claimed this amount from this defendant No. 1 stating that the government of Maharashtra had appointed this plaintiff as wholesale dealer for sale of the chemical fertilisers. They had entered into agreement with the government for this purpose and as per the said contract they were to appoint sub-selling agents as would be suggested by the Government and accordingly they had appointed the defendant No. 1, the other Federation as a Sub-selling Agent of the fertilisers. The said Federation executed the contract in their favour on 8-10-1967 and on the basis of that contract, the Defendant federation had constructions with the appellant Federation, during the year 1960 to 1970.

(3.) IN the trial Court the respon dents denied the claim against them. According to the respondent No. 1 the dispute itself was not tenable under section 91 of the M. C. S. Act since they were not members of the appellant society and the alleged transactions were not in their capacity as members of the appellant. They had denied that they had agreed to pay the interest claimed. It is said that the appellants them selves have violated the terms and conditions of the agreement with them and contended that the appellant had recovered huge amounts from the Government and the transactions between the appellant and the respondent No. 1 and they were not liable to pay anything to the appellants. The respondent No. 2 was a guarantor to the respondent No. 1 to the extent of Rs. 3 lakhs. Therefore, the appellants claimed that amount from the respondent No. 2. The respondent No. 2 also denied the liability by filing the written statement. They claimed that they were discharged from the liability and there was no agreement of interest. According to the respondent No. 3 the appellant itself was liable to pay to the Government rs. 16,17,516,63. The learned trial Judge after having heard the matter considered that since the appellant had recovered admittedly Rs. 29 154 26 from the Government and Zilla Parishad towards the claim in the dispute and the amount had been credited in the account of the Respondent No. 1 it is also recorded in the accounts maintained by it. The learned Judge considered that there is no evidence led by the parties to show that the goveinment was in any way concerned with the suit transaction or claim on the contrary the Government itself has alleged the dues payable by the appellant. The statement of account of the appellants was showing that as on 30th June, 1978 balance due was Rs. 5,87,506. 70 while on 31-3-1978 Rs. 2,95,154. 26 were shown as recovered against the said amount in the account. The balance was included Rs. 3,47,158. 04 on account of difference in the rates. However, in the statement of account produced by this appellant as on 30-6-1987 the dues were shown as Rs. 6,68,004. 30. On 31-5-1985 the appellant received from the Government towards this transaction with the Respondent no. 1 Rs. 2,4231. 36 and the witness for the appellant Mr. B. R. Desai had, deposed that as on 19-7-1979 the total amount, due from the respondent No. 1 was Rs. 2,92,2351- and there were no other does payable by the respondent no. 1 against the suit transaction. He admitted that there was no agreement to pay interest and, therefore, the learned Judge considered that when the evidence of the appellant was not clear as to how much amount of interest was included in Rs. 5,87,506. 17. The claim in the dispute cannot be considered as proved and genuine. The witness of the appellant has admitted that the suit claim was including the debit entry Of Rs. 3,47,138. 04, the amount of difference in the rates, but he was Unable to explain the period for which this difference was calculated. Therefore, this difference amount has remained unproved by cogent evidence according to the Lower Court. Even if giving credit of this amount of difference the real balance out of the claim amount would. be of Rs. 2,40,348/- while it is admitted by the witness for the appellant that the appellants have recovered Rs. 2,95,154. 26 from the Government towards the suit claim. Therefore, he held that the appellants have failed to prove the claim in the dispute and as such the claim of interest would not survive. On the point of jurisdiction when it was challenged that the dispute under Section 91 was not maintainable, the respondents contention was that the business between the appellant and the respondent No. 1 was that of wholesale agent and sub-agent. Therefore, it was not covered under the provisions of Section 91 of the Act and it was not a transaction with the respondent No. 1 in their capacity as member, but the Lower Court rejected the said contention holding that under Section 91 (1) (a) a dispute against the agent is also tenable provided the transaction arose in the business of the society and the agreement at Ex. 7 shows that it was relating to the business of the appellant-Society and the respondent No. 1 is also registered Co-operative Society and, therefore, the dispute has been held as maintainable.