1980 PLP 1721 (CLC)

Dates of hearing 12th and 29th January 1980. The facts giving rise to this civil revision are that the respondent, the Rural Supply, Co-operative Corporation Limited, Lahore, appointed the petitioner. The Gujranwala Co-operative Marketing and Supply Society Limited, Gujranwala, as its commission agent for sale of fertili zers. Having acted as such for some time, the petitioner filed a suit against the respondent for rendition of accounts. It was claimed by the petitioner that it was entitled to recover Rs. 454.99 from the respondent. The suit was resisted by the respondent inter alia on the ground that it had abated in pursuance of the provisions of paragraph 8 of the Martial Law Order No. 241, issued by the Martial Law Administrator, Zone `A', hereinafter referred to as the said Order, and that since the dispute involved in the suit had been referred to the Registrar, under section 54 of the Co-operative Societies Act, 1925, the Civil Court had no jurisdiction to hear the suit. According to the reference alleged to have been so made, the petitioner had to pay some amount to the respondent. The Civil Judge, who was seized of the suit, did not record a clear finding with regard to the second objection raised by the respondent. It was, however, held by him that the suit had abated, as contended by the res pondent. Feeling aggrieved by the order of the learned Civil Judge, the petitioner went in appeal before an Additional District Judge but without success. Hence this revision.

2. Learned counsel for the petitioner submitted that the provisions of paragraph 8 of the said Order were applicable only to such suits as were brought by a borrower as defined in clause (a) of sub-paragraph (1): of paragraph 2 of the said Order and since the petitioner was not such a borrower, its suit was not hit by paragraph 8 of the said Order. It was pointed out hit by paragraph 8 of the said Order. It was pointed out by the learned counsel for the petitioner that a person can be treated as borrower within, meaning of the said Order if he has taken loan from a Co-operative Society but as tire amount involved in the present dispute was not of any loan advanced to the petitioner, it was not a borrower.

3. In reply, learned counsel for the respondent maintained that the definition of the word "loan" had not been given in paragraph 2 of the said Order but it had been laid down therein that the expressions used in the said Order but not defined and defined in the West Pakistan Cooperative Societies and Co-operative Banks (Repayment of Loans) Ordinance, 1966, hereinafter referred to as the said Ordinance shall have the meaning respectively assigned to them in the said Ordinance. The argument proceeds that according to sub-clause (i) of clause (f) of section 2 of the said Ordinance any amount which is due from any person to a cooperative society or co-operative bank, whether taken as a loan or not, is a loan and, therefore, the amount due from the petitioner to the respondent was a loan which would make it a borrower within the meaning of the said Order.

4. While commenting on the argument advanced by the learned counsel for the respondent, it was urged by the learned counsel for the petitioner that the word "such person" used in sub-clause (i) of clause (f) of section 2 of the said Ordinance related to a person who had taken loan from a co-operative society or a Co-operative Bank but as the petitioner and not taken any loan from the respondent the definition of the word "loan" as given in the above provisions of the said Ordinance dad not advance the case of the respondent .

5. The definition of the word "borrower" as appearing in clause (a) of sub-paragraph (1) of paragraph 2 of the said Order reads as follows "borrower" means a person who has obtained a loan from a Co-operative Bank or a Co-operative Society or his surety, or in case of a benami loan, a person who is the real beneficiary or recipient of the loan and includes the legal heirs and the successors-in-interest of any such person or surety." Clause (f) of section 2 of the said Ordinance, which has been relied upon by the learned counsel for the respondent is to the following effect :- " `loan' means a loan (including any transaction which in the opinion of the Registrar is in substance a loan), whether of money or in kind, which is not secured or is insufficiently secured and taken from a co-operative society by the person, whether a member of such society or not, or from a co-opera tive bank by any person but not a co-operative society, and Include (i) any amount which is due from any such person to a co -operative society or a co-operative bank, whether taken as a loan or not : (ii) any amount due from any such person to a co-operative society or a co-operative bank under a decree passed by a Civil Court or an award given by an arbitrator or a decision of the Registrar, whether in exercise of his original or appellate JurisdiC0oi1 and (iii) any loan due from any such person to a co-operative society or a co-operative bank which is the subject-matter of any pending suit, arbitration proceedings, appeal or revision, whether under the Act or before any Court." According to sub-clause (i) of clause (f), reproduced above, any amount due to a co-operative society can be treated as loan if it is payable by "such person" as is referred to in the opening part of clause (f). There the word "person" has been used twice. This word when employed for the first time means a person who has taken loan from a co-operative society. The petitioner is not such a person because it is not the case o any one that it had taken loan from the respondent which is, undoubtedly, a co-operative society. The word "person" occurring for the second time refers to a person, other than a Co-operative Society, who has taken loan from a Co-operative Wink. The petitioner is not a person of the second, category either because (1) it is a Co-operative Society and, in view of the'' phrasing "but not a Co-operative Society" appearing in sub-clause(1) has been expressly excluded from the purview of the word "person" and (2) the word "loan" used in relation to the person of the second category is a loan advanced by a Co-operative Bank but the respondent is not a Bank of that type. The word "loan" appearing in the opening part of clause (f) means loan in the ordinary sense but the Registrar has been empowered to declare any transaction as loan which, in his opinion, is in substance a loan. It was, however, frankly conceded by the learned counsel for the respondent that the Registrar has made no such declaration in regard to the amount in dispute or any amount payable by the petitioner to the' respondent. It would, therefore, follow that the petitioner is not "such person" within the meaning of sub-clause (i) of section 2 of the said Ordinance and, therefore, any amount payable by it is not loan within the meaning of the said Ordinance.

6. As indicated above, according to clause (a) of para. 2 of the said order, the borrower is a person who has taken loan as defined in, clause (f) of section 2 of the said Ordinance but since it has been found that the petitioner did not take such loan from the respondent, the formed is not a borrower and, therefore, the provisions of the said Order, which relate to a borrower, were not applicable to the suit brought by the In this view of the matter, its suit had not abated in pursuance of para. 8 of the said order.

7. Another point canvassed by the learned counsel for the dent was that a notice, under section 70 of the Co-operative Societies Act 1925, wets not served by the petitioner on the Registrar of the Co operative So6etres before tiling the suit and, therefore the suit was not competent. Admittedly this plea was not raised before the learned trial Court and since it does not involve a pure question of law, I am no inclined to entertain it will be decided by the trial Court if it is allow ed to be raised by that Court.

8. The suit was dismissed by the trial Court as it was held by that Court that it had abated in terms of the provisions of para. 8 of the said Order. His finding was affirmed by the appellate Court by means of the judgment and decree assailed herein. I have, however, not agreed with them and have reversed their finding in this behalf. Resultantly, I accept this revision petition with costs, set aside the impugned order and remand the case to the learned trial Court for fresh decision in accordance with law. Petition accepted.