Final Order 2

Order Details: Notice of Motion
Pdf Text: NM 102821 / 2019 Co-op. Bank Employees – Abhudaya Order (Exh.8) 1 of 8
City Civil and Sessions Court, Mazgaon Greater Mumbai
Court Room No. 31 – Commercial Court,
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010077362019
Notice of Motion Filed : 20.07.2019
Arguments Over : 05.02.2024
Decided on : 04.04.2024
Duration : 4 Y, 8 M, 15 Days
Exhibit No.8
Commercial Suit No. 100769 / 2021
Notice of Motion No. 102821 / 2019
Plaintiff : The Co-operative Bank Employees Union,
Mumbai
VERSUS
Defendants 1 Abhudaya Co-operative Bank Ltd.
2 Abhudaya Co-op. Bank Employees Union
3 Kishor T. Kadam
4 Raghunath Tawde
5 Sunil W. Sukale
Appearances
Plaintiff
: Adv. Shri A. S. Peerzada
Defendant No. 1
: Adv. Shri K. B. Adyanthaya
Defendant No. 2 & No. 5
: Adv. Shri K. P. Anilkumar
Defendant No. 3 & No. 4
: Adv. Shri Vinod Tayde
Notice of Motion for interim injunction
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ORDER
(Pronounced on this 4th Day of April, 2024)
Plaintiff has preferred Notice of Motion for relief of
injunction.
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Parties to dispute, as per case of plaintiff :
2) Co-operative Bank Employees Union, Mumbai,
Maharashtra (hereinafter,
Plaintiff) is Trade Union, registered
under Trade Unions Act, 1926 and Maharashtra Industrial
Relations Act, 1946.
Plaintiff Union is having Saving Account No. 68037
(hereinafter,
Account) with Nehru Nagar Branch of D1-Bank.
Defendant No. 1 Abhudaya Co-operative Bank Ltd., is
Co-operative Society registered under Maharashtra State Co-
operative Society Act, 1960 (hereinafter,
D1-Bank).
Defendant No. 2 Abhudaya Co-op. Bank Employees
Union is newly registered (06.07.2019) Trade Union under Trade
Unions Act, 1926 (hereinafter,
D2-Union).
Defendant No. 3 Kishor Kadam, defendant No. 4
Raghunath Tawde and defendant No. 5 Sunil Sukale are office
bearers of defendant No. 2 Union (hereinafter,
D3 to D5).
Case of Plaintiff-Union :
3) Plaintiff Union is working for betterment of service
conditions of employees of D1-Bank.
Initially, D3 to D5 were members of plaintiff Union. At
that time, D2 Union was not in existence.
4) Despite having no vacancy, D1-Bank illegally recruited
125 employees. Hence, plaintiff raised objection. Fearing that,
plaintiff Union will expose illegal acts of D1-Bank, D1-Bank
sponsored D3 to D5 to form new Union i.e. D2-Union.
5) Considering formation of D2-Union, plaintiff Union
conveyed Special General Body Meeting on 11.07.2019 and
removed D3 to D5 from plaintiff Union.
Plaintiff Union also passed
Resolution on 11.07.2019
and forwarded e-mail on same date, requesting D1-Bank to freeze
said Account. Plaintiff Union also forwarded said Resolution,
vide Speed Post Dt. 12.07.2019 to D1-Bank.
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6) On 16.07.2019, plaintiff Union got knowledge that, on
12.07.2019, D1 to D5 withdrew . 2,00,000/- and	₹ ₹. 1,70,000/-
from said Account. Further, Fixed Deposit of ₹. 37,88,304/- was
broken prematurely and its . 36,00,000/- was withdrawn and	₹
handed over by D1-Bank to D2-Union.
Thereafter, against Fixed Deposit lying with D1-Bank,
D3 to D5 illegally raised loan of ₹.20,00,000/- and credited said
amount with D2-Union.
7) D1 to D5 are trying to close the Account, are trying to
transfer all investment, movable, immovable assets and vehicles
of plaintiff Union to D2-Union.
Hence, it is necessary that, Account No. 68037 be freeze
and defendants be directed to disclose all the transactions, they
have conducted regarding said Account w.e.f. 01.07.2019. Hence,
plaintiff prayed for following reliefs :
1. Declaration that, acts of transfer of amount Dt.
12.07.2019 from Account are illegal.
2. Declaration that, act of breaking of Fixed Deposit of .	₹
20,00,000/- and Pay Order No. 600007 Dt. 12.07.2019
in favour of D2-Union is illegal.
3. Declaration that, issuance of Notices regarding meeting
Dt. 20.07.2019 for transfer of assets of plaintiff Union
to D2-Union is illegal.
4. Injunction restraining defendants or anyone acting on
their behalf, from dealing, transferring, alienating,
movable or immovable asset of plaintiff Union.
5. Pending disposal of Suit, defendants be directed to file
affidavit of disclosure about transactions effected by
them regarding Account and its Fixed Deposits.
6. Pending disposal of the Suit, Account No. 68037 and its
Fixed Deposits be freeze.
7. Pending disposal of Suit, D1-Bank be directed to
reverse all transactions regarding Account.
8. Defendants be directed to deposit Claim amount.
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Points for determination :
8) Perused Record. Heard Learned Counsels. Points for
determination, findings and reasons are as follows :
Points
Findings
1 Does plaintiff prove prima facie
case in his favour?.......................... Does not Survive.
2 Does plaintiff prove balance of
convenience in his favour?……… Does not Survive.
3 Does plaintiff prove possibility of
irreparable loss to it?…………….. Does not Survive.
4 What Order? …………………… As per final order.
R E A S O N S
Reasons as to Point No. 1 to No. 4 :
9) Plaintiff and D2-Union are asserting their rights over
Saving Bank Account No. 68037, which is being maintained by
D1-Bank.
It means, dispute between parties is dispute between
two Trade Unions, who are claiming rights over bank account.
10) In that backdrop, relevant portion from Sec. 2 (1) (C) of
the Commercial Courts Act reads as :
(c) “commercial dispute” means a dispute arising
out of--
(i) Ordinary transactions of merchants, bankers,
financiers and traders such as those relating to
mercantile documents, including enforcement
and interpretation of such documents;
(ii) Export or import of merchandise or services;
(iii) Issues relating to admiralty and maritime law;
(iv) Transactions relating to aircraft, aircraft engines,
aircraft equipment and helicopters…..
(v) Carriage of goods;
(vi) Construction and infrastructure contracts…..
(vii) Agreements relating to immovable property ….
(viii) Franchising agreements;
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(ix) Distribution and licensing agreements;
(x) Management and consultancy agreements;
(xi) Joint venture agreements;
(xii) Shareholders agreements;
(xiii) Subscription and investment agreements
pertaining to the services industry including
outsourcing services and financial services;
(xiv) Mercantile agency and mercantile usage;
(xv) Partnership agreements;
(xvi) Technology development agreements;
(xvii) Intellectual property rights relating to registered
and unregistered trademarks, copyright, …..
(xviii) Agreements for sale of goods or provision of
services;
(xix) Exploitation of oil and gas reserves or other
natural resources …..
(xx) Insurance and re-insurance;
(xxi) Contracts of agency relating to any of the above;
and
(xxii) Such other commercial disputes as may be
notified by the Central Government.
11) In backdrop of above provision, it is necessary to
ascertain, whether dispute between parties,
regarding rights over
bank-account, can be tried before Commercial Court.
12) It is not case of plaintiff that, dispute between plaintiff
Union, D1-Bank and D2-Union is dispute between,
merchants,
bankers, financiers and traders.
Nowhere it is claimed that, plaintiff and D2-Union are
merchants or bankers or financiers or traders or they are
performing duties in consonance with such entities.
In fact, the very formation of plaintiff Union and D2-
Union is for the
welfare of the employees.
13) Though D1-bank is banker, however, in given facts and
circumstance, its is not entitled to conduct transaction in Account,
on its own. It is merely custodian of account over which plaintiff-
Union and D2-Union are claiming rights.
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14) Therefore, it is held that, whatever dipsutes are involved
in the Suit, are not disputes between merchants, bankers,
financiers and traders.
No Commercial Transaction :
15) Account with D1-Bank over which plaintiff and D2-
Union are asserting rights is basically an account for the welfare
of employees. It is not case of any party that, said account is
being maintained for commercial transactions or through said
account, commercial transactions were carried out by parties.
Mercantile documents :
16) Parties are asserting their rights over the account. So, no
mercantile document is involved in the dispute.
Conclusion :
17) Plaintiff himself stated that, it is Trade Union registered
under the Trade Unions Act, 1926 and is approved Union under
provisions of Maharashtra Industrial Relations Act, 1946.
So, dispute is between the unions and the management.
Such disputes are normally triable before the Labour Court or
before the Industrial Court or any other similar Forum, which will
have to be searched out by the plaintiff.
18) Suit is against Bank wherein the entitlement of one of
the two Trade Union is to be adjudicated. Of the two Unions,
which Trade Union is entitled for operation of bank account, will
have to be considered under the light of provisions of Trade
Union Act, Industrial Disputes Act, and similar legislation.
19) Overall facts from the Suit are that :
1. Dispute is between Trade Unions.
2. Trade Unions are asserting rights over Bank
Account, which is being maintained by D1-Bank.
3. Basic role of both plaintiff Union and D2-Union is
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that of welfare of its employees and to protect
rights of employees against arbitrariness, if any, of
the management.
4. Both Trade Unions are not performing acts of
commercial nature.
5. No commercial transactions are involved in Suit.
20) As the dispute in the Suit is not of commercial nature,
the Commercial Court cannot try the Suit. Hence, this Court
cannot entertain any reliefs which are being sought by Plaintiff.
Therefore, Points are so answered and accordingly, the
controversy is adjudicated by following Order :-
ORDER
1. Notice of Motion No. 102821 of 2019, is filed.
2. Plaint of Commercial Suit No. 100769 / 2021, Co-
operative Bank Employees Union Vs. Abhudaya Co-
operative Bank, be returned to the Plaintiff U / Order 7
Rule 10 of Code of Civil Procedure, 1908, for
presenting the same before appropriate forum.
3. Parties are at liberty to agitate about Notice of Motion
No. 102821 / 2019, before the appropriate forum.
4. This be considered as intimation of the decision of the
Court to the plaintiff. Plaintiff is at liberty to make an
application U / Order 10-A of the Code of Civil
Procedure for necessary compliance.
5. Interim relief granted by my Learned Predecessor on
20.07.2019, is extended for next two months from the
date of this Order, so as to facilitate the parties to
approach the appropriate Forum.
6. Order pronounced in Open Court in presence of Mayur
Ramchandra Divekar, representative of D2-Union, by
explaining the substance of Order.
7. Parties be informed about their right to challenge this
Order and period of limitation for same.
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8. Record of Notice of Motion shall be part of Commercial
Suit No. 100769 / 2021.
Mumbai
Dated : 04.04.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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