Southern Nagpur Co-Operative ... vs Purushottam S/O Raghosao ...
2006 Latest Caselaw 769 Bom

JUDGMENT

S.R. Dongaonkar, J.

Page 2663

1. This appeal under clause 15 of the Letters Patent is directed against the judgment and order passed by the learned Single Judge of this Court dated July, 4, 1994 in writ petition No. 2798 of 1993 by which the writ petition preferred by the appellantsociety to challenge the order dated 30/12/1992 passed by the Maharashtra State Co-operative Appellate Court, Nagpur in Appeal No. 64 of 1990 was dismissed.

2. The facts in brief for the decision of this appeal can be stated thus:

A) Respondent No. 1 filed the dispute in the Cooperative Court, Nagpur bearing Dispute No. 110/1982-83 under Section 91 of the Maharashtra Co-operative Societies Act for declaration that he is entitled to claim the allotment of the plot, from the appellant-society along with possession, in pursuance to the resolution of 1966. He had also claimed that the Co-operative Court should declare that the allotment of plot (offer) as per letter dated 08/6/1981 is illegal and not binding on the disputant. He had also claimed a direction to the appellant-society to consider the claim of the disputant respondent No. 1 to allot the plot in the sanctioned lay-out in Kh. No. 1/1, Somalwada out of plot Nos. 3 and 4 besides the usual reliefs.

B) The respondent-disputant has claimed that he was oldest senior member of the society. He wanted to purchase a plot and construct his own house on the same, so he became the member of the society on 31/7/1966. According to him, being a member of the society, he is entitled to have a plot at a reasonable price. According to him, further, he had approached the office bearers of the society and the society had asked the disputant to deposit two installments of Rs. 1,500/- each for allotment. Accordingly, he had deposited first installment on 01/7/1968 and second installment by a cheque dated 31/3/1972 (of Rs. 1,500/-). According to him, the office bearers of the society told him that he would be informed about the allotment of the plot, however, he did not receive any information about the same and later on he came to know that the junior members of the society had received allotment of the plot and he had not. So, he wrote protest letter to the society on 20/4/1981. In reply, he received a letter from the society dated 16/5/1981 informing that the claim of the disputant was Page 2664 rejected by resolution dated 19/3/1972 as the cheque submitted by him as second installment for purchase of the plot was dishonoured by the Bank. According to him further, the society did not return him the amount of Rs. 1,500/- which was tendered by him as first installment. According to him the resolution of refusal to allot him the plot dated 19/3/1972 was illegal. Raising other contentions that there were plots available for allotment with the society, etc., he claimed allotment of plot in second lay-out Kh. No. 1/1, Somalwada out of plot Nos. 3, 4 and 5. He had claimed the declaration that the resolution of refusing allotment of plot to him is illegal so also the letter dated 08/6/1981 regarding offer of allotment of plot to him as per new rates, is illegal claiming that he is entitled for the relief as sought in the dispute before the Co-operative Court claiming a direction to the society to consider his claim for allotment of plot out of plot Nos. 3 and 4.

C) The appellant-society had denied all the material contentions raised by respondent No. 1-disputant. The defence of the society was in clear terms and that respondent No. 1-disputant had failed to comply with the payment schedule and was determined by the society for allotment of plot. According to the appellant, the disputant-respondent No. 1 did not pay the second installment despite knowledge of the dishonour of his cheque so also he did not pay the third installment. Further, according to the appellant-society, respondent No. 1 failed to make payment as per resolution dated 29/2/1972 by which the members who had not paid second or third installment were asked to pay the same to make them eligible for allotment of plots. It is also claimed that the dispute was barred by limitation claiming dismissal of the suit.

3. After the parties led evidence and after hearing of the dispute, the learned Judge of the Co-operative Court, came to the conclusion that the dispute is liable to be dismissed, however, he found that as the disputant was still a member of the society, his claim for allotment of the plot in future should be considered on the same conditions as may be applicable to other members. Accordingly he passed an award dated 25/6/1990.

4. The respondent-disputant preferred an appeal in the Cooperative Appellate Court, Nagpur bearing Appeal No. 64 of 1990. He succeeded in the said appeal and the judgment of the Cooperative Court was set aside with the further order that the society shall consider the claim of the disputant and allot plot No. 3 in the second lay-out in Khasara No. 1/1, Somalwada with a liberty to charge a price pursuant to Exh. op-32 dated 08/6/1981.

5. The appellant-society then took up the matter to this Court in writ petition No. 2798 of 1993, however, the appellant did not succeed in the said writ petition vide order of this Court dated 04/7/1994 passed by the learned Single Judge. This judgment and order is challenged in this appeal.

6. Learned Counsel for the appellant has submitted that respondent No. 1 has no right to claim the allotment of plot in pursuance to his earlier claim as he had committed defaults in adhering to the schedule of payment in respect of the said plot. He has submitted that respondent No. 1 had failed to pay second installment of Rs. 1,500/- after his cheque was dishonoured, though Page 2665 he had knowledge about the same so also he did not pay the requisite third installment. It is submitted that the dispute was barred by limitation and the observations of the appellate Court as well as the learned Single Judge of this Court, as regards treating the dispute within limitation are not sustainable in law. According to him, the disputant-respondent No. 1 should have at least preferred an application for condonation of delay to bring the dispute within limitation under the provisions of Section 92(3) of the Maharashtra Co-operative Societies Act and as respondent No. 1-disputant did not file any application for condonation of delay, it was not correct on the part of the appellate Court as well as the learned Single Judge to allow the condonation of delay in referring the dispute. It has been also urged that the resolution of the Managing Committee of the society to refuse the allotment of plot to respondent No. 1 on the basis of non payment of the installments was confirmed by the General Body of the society, and therefore, as the disputant did not challenge the General Body's resolution, he was not entitled for allotment of plot. More specifically, the learned Counsel has relied on the decision in the case of Ramesh Chand Sharma v. Udham Singh Kamal and Ors. to contend that as the dispute was barred by limitation in view of the provisions of Section 92 of the Maharashtra Co-operative Societies Act, it was obligatory on the part of respondent No. 1 to make an application for condonation of delay without which the Co-operative Court could not have been satisfied for sufficient cause for not preferring the dispute within the limitation period.

7. Learned Counsel for respondent No. 1 Shri Thengre has contended that the period of limitation had commenced from 16/5/1981 when the refusal of allotment of plot was conveyed to respondent No. 1-disputant, and therefore, there was no question of filing any application for condonation of delay. According to him, the disputant has made the payment of second installment by cheque and there was sufficient balance in his Bank account to meet encashment of the said cheque, however, the said cheque was dishonoured because signature differed. He contended that since there was no knowledge of the said dishonour of cheque to respondent No. 1, there was no question of paying the second installment thereof, and therefore, according to him, the judgment and order of the lower appellate Court as well as the learned Single Judge of this Court are correct, and therefore, this appeal should be dismissed.

8. Considering the rival contentions of the parties, it is necessary to first find out as to whether the dispute is barred by limitation. The thrust of contention of respondent No. 1 in this regard is that he had received the knowledge of refusal of allotment of plot to him only in the year 1981, and therefore, his dispute was within limitation. As against this, the contention of the appellant is that the refusal of the allotment of plot to respondent No. 1 was only in 1972 when respondent No. 1 had committed default in keeping the schedule of payment of the installments, therefore dispute is barred by limitation.

Page 2666

9. The period of limitation and relevant provisions, regarding allowing to prefer the dispute after the expiry of limitation, are provided under Section 92 of the Maharashtra Co-operative Societies Act which reads thus:

92. Limitation

(1) Notwithstanding anything in the Limitation Act, 1963, but subject to the specific provisions made in this Act, the period of limitation in the case of a dispute referred to the Co-operative Court under the last preceding section shall

(a) ...

(b) When the dispute is between a society or its committee, and any past committee, any past or present officer, or past or present agent, or past or present servant or the nominee, heir or legal representative of a deceased officer, deceased agent or deceased servant of the society, or a member, or past member, or the nominee, heir or legal representative of a deceased member and when the dispute relates to any act or omission on the part of either party to the dispute, be six years from the date on which the act or omission with reference to which the dispute arose, took place;

(c) ...

(d) ...

(2) ...

(3) Notwithstanding anything contained in sub sections (1) and (2), the Co-operative Court may admit a dispute after the expiry of the limitation period if the Applicant satisfied the Co-operative Court that he had sufficient cause for not referring the dispute within such period and the dispute so admitted shall be a dispute which shall not be barred on the ground that the period of limitation had expired.

It is obvious that the period of limitation prescribed for referring the dispute by the member against the society is six years from the date on which the act or amount with respect to which the dispute arose and took place and the Co-operative Court is empowered to admit the dispute after the expiry of limitation period if the appellant satisfies the Co-operative Court that he had sufficient cause for not referring the dispute within such period.

10. Here is the case where the allotment of plot and payment schedule to be adhered was of the year 1972. It is apparent from the record that important resolution which relates to the transaction in the dispute is dated 19/3/1972. It would be apparent that respondent had himself stated that he had deposited Rs. 1,500/- for plot in the year 1968 and another installment was paid by him by cheque in the year 1972. The resolutions regarding these payments have also been proved. However, it is an admitted position that the cheque was dishonoured though respondent No. 1 has claimed no knowledge of the same and also intimation from the society about its dishonour. It is pertinent to note that respondent No. 1 was also obliged to pay third installment later on. It is not the case of respondent No. 1 that he had, in fact, paid the third installment as stipulated. According to the appellant, the society had resolved that the members who had not paid second or/and third installments should not be allotted the plot and the said resolution was informed to the disputant by a letter dated 20/10/1971 by registered Page 2667 post with acknowledgment due of which the documentary evidence is produced at Exh. op-17. Even assuming that respondent No. 1 was not given any knowledge of dishonour of the cheque by the society, the fact remains that he had enough opportunity and occasions to have the knowledge about the same even at the latter point of time at least when he would have tried to pay the third installment. As admittedly, third installment was not paid as stipulated, respondent No. 1 would not get any right for preferential allotment of the plot as per the earlier resolution. It has been a specific case of the appellant-society that the disputant had failed to deposit in all Rs. 4,500/- on or before 29/02/1972, and therefore, he was not allotted the plot, and therefore, it goes without saying that the cause of action for this dispute, if any, had arisen in 1972. As the dispute has been filed in 1982, it need to have been supported by an application for condonation of delay to bring the case under the provisions of Section 92(3) of the Maharashtra Co-operative Societies Act in view of Ramesh Chand Sharma v. Udham Singh Kamal . We may add that even in dispute application there are no grounds requesting or justifying condonation of delay.

11. On the facts and circumstances of the case, the contentions of the disputant-respondent No. 1 that he came to know about refusal of allotment of plot only in the year 1981, cannot be accepted as true for the simple reason that undisputedly the society had Annual General Meetings every year prior to 1981 since 1972, when he could have raised voice about non allotment, so also he had enough opportunity and occasion to have knowledge of the allotment of the plots to other members of the society who had paid the required amount by installments as stipulated in his case, on allotment of plots to him and others similarly placed. The contention about acquisition of knowledge about termination of allotment of plot in his favour in 1981 is neither established with cogent materials nor can be believed.

12. Considering the documentary evidence on record, it is not possible to hold that the dispute was within limitation in view of the provisions of Section 92(i)(b) of the Maharashtra Co-operative Societies Act. We, therefore, agree with the view taken by the learned Judge, Co-operative Court in this regard.

13. The learned Single Judge, while dismissing the writ petition has observed that the view taken by the first appellate Court that the starting point for computing the limitation for referring the dispute was 08/6/1981, cannot be found fault with. However, in the circumstances of the case, in our view, it is difficult to subscribe to the view of the learned Single Judge that the starting point of limitation would be 08/6/1981 in the present case, taking into consideration the fact that it was fresh offer of allotment of plot and not in pursuant to earlier allotments of 1972 particularly as indicated above in view of the fact that respondent No. 1 being a member of the society, would have been participating in the Annual General Meetings of the society from 1972 till 1981 and also must be in contact with other members of the society to come to know that his request of allotment of plot was rejected by the General Body concurring with the resolution of the Managing Committee. In any case, it is Page 2668 impossible to hold that he is entitled for allotment of plot, as contended by him in dispute, as he had committed default in making payment of at least third installment for which there is no justification on record, particularly when no case is made out by the disputant that he was not at all required to pay third installment of Rs. 1,500/-, despite such contention was raised by the society.

14. In the circumstances, even assuming for a moment that the dispute is within limitation, the inaction on the part of respondent No. 1-disputant to pay required installment in time, would disentitle him from claiming the plot.

15. In the business/working of the Housing Co-operative Societies, the Management Committee has to work within the framework of the bye-laws and each member of the society has also to function and claim his rights, within the society in pursuance of the said bye-laws. The members cannot be permitted to commit defaults and also claim their rights for the obvious reasons. In such cases, unless the members are found to have performed their part of obligations, they would not be entitled for any favour from the society. In equities, disputant-respondent No. 1 here will not be entitled for allotment of the plot as in 1972 in as much as the resolution for same was passed only because of the defaults committed by respondent No. 1 in maintaining the payment schedule.

16. The disputant-respondent No. 1, being still a member of the appellant-society, was given preference for allotment of the plots on the condition which may be applicable to all other members in 1981. The appellate Court has directed that the society shall consider the claim of the disputant and allot plot No. 3 in the second lay-out in Kh. No. 1/1 Somalwada with a liberty to charge a price pursuant to letter dated 08/6/1981. The writ petition against this order was dismissed. In these circumstances, the only question is; as to what relief the disputant-respondent No. 1 would be entitled as he is still a member of the appellant-society.

17. It has been informed that plot No. 3 is yet to be allotted to any of the members. Learned Counsel for the appellant has contended that if the flat scheme is allowed to be launched for plot No. 3, respondent No. 1 could be given preference.

18. As we have found that respondent No. 1 is not entitled for any legal allotment of plot No. 3, his claim can be considered by the society as per the bye-laws and as may be considered by the Managing Committee and the General Body of the said society in the present circumstances. It is needless to state that if society decides to have flats scheme there or to go in for fresh allotment of that plot, respondent No. 1 may be given preference either in the flat scheme or for allotment of the plot as per the society's General Body resolution. In any case, not as per the price in the year 1972, or as per letter dated 08/6/1981 as respondent No. 1 has himself refused to accept the terms and conditions of the same. His claim can be considered along with the claim of other members, if any.

19. With these directions this appeal is allowed. Impugned judgment and order of the learned Single Judge dated July, 4, 1994 in Writ Petition No. 2798 of 1993 and also of the Co-operative appellate Court are set aside. The dispute of respondent No. 1 shall stand dismissed with no order as to costs.