HIMANGSHU BHUSAN CHAKRABORTTI Vs. NIRMAL KUMAR DAS

JUDGEMENT

(1.) The defendant is the appellant in the second appeal. He was the Secretary of the Co-operative Urban Bank Limited, Malda. The plaintiff respondent Normal Kumar Das was a member of the above bank. The bank brought a money suit against the plaintiff Nirmal Kumar Das and another. In course of his deposition before the Court the, plaintiff is alleged to have made certain defamatory statement against the defendant Himangshu Bhusan Chakrabortti. The statement in, question was to the following effect "Himangshu is defalcating bank money and so I am not in good feeling as I protested". Thereafter the defendant filed a petition before the Assistant Registrar, Co-operative Society, Malda, claiming damages to the tune of Rs. 5000/- on tie allegation that in course of deposition the plaintiff respondent had made a false and mischievous defamatory statement, calculated not only to lower him (defendant) in the estimation, of the public but also to bring into disrepute the bank. The matter was referred to an Arbitrator under Section 86 of the Bengal Co-operative Societies Act, 1940, read with Section 87 (1) (c) of the Act. The arbitration proceedings are still pending before the Arbitrator, because the plaintiff brought a suit in the Civil Court for a permanent injunction restraining the defendant from proceeding with the case before the Arbitrator and for recovery of costs alleged to have been incurred by the plaintiff in connection with the illegal arbitration proceedings together with a prayer for declaration that the Registrar or the Assistant Registrar or the Arbitrator had no jurisdiction and that the order passed by the Assistant Registrar in the matter of arbitration was illegal and ultra vires. Both the Courts refused the plaintiff's claim for permanent injunction and his claim for costs in the arbitration proceedings. Whereas, however, the trial Court held that the declaration sought for, could not be granted in the absence of any consequential relief, the learned lower appellate Court granted this declaration.

(2.) On behalf of Himangshu Chakraborttt defendant appellant, two points have been urged, first, that the Courts below should have held that as the matter was one for a decision by the Assistant Registrar or the Arbitrator only, coming as it did within the purview of Section 86 of the Act and consequently within the meaning of Section 133 (1) (c), the Civil Court had no jurisdiction to grant the declaration prayed for; and, secondly, that the Court below should not have granted the declaration, in the absence of any consequential relief.

(3.) The learned Advocate for the appellant has urged that the dispute touched the business of the Co-operative Society and that consequently Section 86 of the Act be brought into operation. The section in its relevant portion is to the following effect, namely: