Bombay High Court
Ramchandra Krushnarao Pitale vs The Scientific Co-Operative ... on 28 October, 2010
Bench: J.P. Devadhar, A. B. Chaudhari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : N A G P U R.
LETTERS PATENT APPEAL No. 396 OF 2009
Ramchandra Krushnarao Pitale
aged 87 years, Occupation : Pensioner,
r/o Tatyatope Nagar, Nagpur.
ig ... APPELLANT.
-VERSUS -
1. The Scientific Co-operative Housing Society Ltd.,
Laxminagar, Nagpur.
through its President.
2. Vishwas Khot,
Secretary,
Scientific Co-operative Housing Society Ltd.,
Laxminagar, Nagpur.
3. Neelmani s/o Jotiram Dhurve,
Occupation : Business,
Laxminagar, Nagpur. ... RESPONDENTS.
....
Mr. R.L. Khapre Advocate for the Appellant.
Mr. A.M. Ghare Advocate for Respondents 1 and 2.
Mr. S.P. Kshirsagar Advocate for Respondent no.3.
....
CORAM : J.P. DEVADHAR & A.B. CHAUDHARI, JJ.
RESERVED ON : 20 OCTOBER, 2010.
th
PRONOUNCED ON : 28.10.2010.
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J U D G M E N T (Per A.B. Chaudhari, J.) :
This letters patent appeal is directed against the judgment
and order dated 15.6.2009 passed by the learned Single in Writ Petition
No. 4834 of 2008 dismissing the petition filed by the appellant.
2. This letters patent appeal was taken up for final disposal
pursuant to an order made by this Court on 16.10.2009 notifying the
parties that the same would be taken up for final disposal. When the
appeal was called out before us on 4.10.2010 it was agreed between the
parties that in terms of the said order dated 16.10.2009 the appeal should
be disposed of finally as the age of the appellant is 89 years and the
counsel for the appellant stated that the appellant has been fighting the
litigation to get the plot since the year 1961. We accordingly proceeded to
hear the appeal. On 6.10.2010 Mr.Ghare, learned counsel for respondents
1 and 2, raised a preliminary objection on the basis of our judgment in LPA
150 of 2010 (Kalpesh Hemantbhai Shah v. Manhar Auto Service)
decided on 1.10.2010 wherein we held that in case of dispute between
landlord and tenant under the Rent Control Act 1999 as per the decision of
the apex court in the case of Shalini Shyam Shetty v. Rajendra Shankar
Patil - 2010 (7) SCALE 428 letters patent appeal would not be
maintainable. On 6.10.2010 we heard the learned counsel for the rival
parties on the said preliminary objection and made an order which reads
thus :
"Shri Ghare, learned counsel for respondent Nos. 1 & 2,
raised a preliminary objection about maintainability of the present
Letters Patent Appeal. In support of his submissions, he relied on
the decision of this Court rendered on 1.10.2010 in LPA No.
150/20, in which the recent decision of Hon'ble Supreme Court in
Shalini Shyam Shetty & anr. v. Rajendra Shankar Patil
reported in 2010 (7) SCALE 428 was considered in detail.
2. Shri R.L. Khapre, learned advocate was heard against the
preliminary objection that was set up by Shri Ghare.
3. Relying on the said judgment, Shri Ghare argued that in
fact the learned Single Judge exercised the power under Article
227 of the Constitution of India and therefore this Court ought to
rely on its judgment dated 1.2.2010 (cited supra).
4. Having heard learned counsel for the rival parties, we find
that in the decision rendered by us in LPA No. 150 of 2010
(Kalpesh Hemantbhai Shah v. Manhar Auto Stores) there was
specific dispute between the landlord and tenant. We reiterate
the relevant extract in paragraph 14 of the said judgment as
under :
"To reiterate, the same is a direct pronouncement on the
issue regarding the petitions arising out of disputes between
`landlord and tenant' and entertaining the same under Article
227 of the Constitution.'
5. In view of the above and since admittedly the present
Letters Patent Appeal is not related to the matter between the
landlord and tenant, we reject the preliminary objection."
We thus overruled the said preliminary objection.
3. On 20.10.2010 the appeal was called out for final hearing
when Mr.Kshirsagar, learned counsel for respondent no.3, invited our
attention to Civil Application No. 752 of 2010 filed by him on behalf of
respondent no.3 and he urged before us that the letters patent appeal,
according to respondent no.3 also, was not maintainable and therefore the
same should be dismissed. He further urged before us that he wanted six
weeks time to approach the apex court challenging the above order dated
6.10.2010 made by this Court rejecting the objection raised by Mr.Ghare as
regards the maintainability of the present appeal. While dealing with Civil
Application No. 752 of 2010, we find in the first place that respondent no.3
had never raised the said objection earlier. We, therefore, reject the said
civil application No. 752 of 2010. That apart, since Mr.Kshirsagar urged
this Court to dismiss the present letters patent appeal as not maintainable,
we propose to record further reasons in response to the preliminary
objection now raised by respondent no.3 regarding maintainability of the
letters patent appeal.
4. It is not in dispute that The Scientific Cooperative Housing
Society Ltd. in which the appellant was allotted plot No. J-1 is registered
under the Maharashtra Co-operative Housing Societies Act, 1960 (for short
the `Act') and its bye-laws are approved by the District Deputy Registrar
from time to time in accordance with the provisions of the said Act. It is
further not in dispute that in a dispute under Section 91 of the Act the
appellant wanted the enforcement of his rights under the Act, Rules and
the approved bye-laws of the Society, i.e. approved by the District Deputy
Registrar under the provisions of the Act and Rules through the medium of
Cooperative Court in order to have transfer of plot from the society in his
name. It is in this background some of the provisions of the Maharashtra
Cooperative Societies Act will have to be noticed.
Section 23 of the Act as well as approved bye-laws of the Society
provides that membership of the Society shall be "open" to persons duly
qualified. Bye-law No. 9(j) provides that the membership shall not be
refused without sufficient cause to any duly qualified person and grounds
of refusal shall be recorded. While clause (k) provides that when a person
is refused admission as a member of the Society, such refusal, if any, should
be communicated to the concerned member within three months. Sub-
section (2) of Section 23 provides for remedy to the party if refusal of
membership is communicated. In the instant case, it is the grievance of the
appellant that for all practical purposes from 1961 the society treated him
as a member but started denying it from the year 1993; and then in
violation of Sec. 23 of the Act and Bye-law No. 9(j) & (k) never refused
membership nor gave any reasons to refuse the same so that appellant
could take up the remedy under Section 23(2) of the Act.
Section 36 of the Act provides that a Society shall be a body
corporate. Section 39 of the Act provides that every society shall keep at
his registered office copies of the Act, Rules and bye-laws and a list of
members for inspection to the `public'. In case of non-compliance there
are remedial provisions in Chapter, namely `Control & Supervision'. It is
the grievance of the appellant that he had applied for inspection. It is the
stand of the Society taken in the written statement that it was not
obligatory for it to give any inspection to the appellant as he was not a
member which is contrary to Sec. 39 of the Act. Rule 8 of The
Maharashtra Co-operative Societies Rules, 1961 provides power with the
Registrar to direct the society to make bye-laws and get them approved
from him. Rule 10 provides for classification and in item no.5 of Rule 10,
housing societies are mentioned. Rule 12 provides for registration of bye-
laws and Rules of the Societies. Rule 30 provides for registration of
members and list of members to be maintained by the society. The
grievance of the appellant throughout has been centering around statutory
provisions of Maharashtra Cooperative Societies Act, Rules and approved
bye-laws which can be seen from the dispute and the evidence led before
the court and the proved correspondence between the parties. The
Cooperative Court acting under Section 91 of the Act is entitled to enforce
and record findings in relation to such non-compliance of the provisions.
In Vijay Ramji Pawar v. Girna Sahakari Sakhar Karkhana Ltd. - 1986
Mh.L.J. 314 this Court in para 7 held thus :
"In any case, Bye-law 34(C) only gives effect to the primacy of
the general body which is also accepted vide Section 72 of the
Act. Section 144-E speaks of a disqualification, "by or under any
provisions of the Act. Bye-laws have statutory force because they
are drawn up and enforced under the powers conferred upon a
Society by the statute. Once they are accepted as required by
the statute they become a provision supplementing the Act.
Therefore, unless there be a prohibition in the Act disabling the
general body from doing anything, a prohibition cannot be read
into the powers of the general body. It is not possible to accept
the contention that Section 144-E(1)(e) takes within its scope a
bye-law framed or adopted by a Society. Where the framers of
the statute wanted to indicate that bye-laws would also govern a
situation , they have made that expressly clear in the statute
itself. An instance of this is sub-section (3) of Section 73G which
makes it clear that the committee of the management shall be
elected by a general body irrespective of what the bye-laws of
the Society prescribe. That the bye-laws have to give way if
there be conflict between them and the statute is not disputed.
Section 9 of the Act specifically provides that the Registrar has
to accord approval to such bye-laws as are "not contrary to the
Act or the Rules." Sub-section (2) of Section 73G indicates that
the members elected on the committee (here, the Board) at a
general election to elect the committee are to hold office for a
period of five years. Next, it lays down that the five years are to
be computed from the date on which the first meeting is held."
5. Now, we quote below para 72 and 79 from the decision of
Apex Court in the case of Shalini's case, 2010(7) SCALE 428, supra,
which reads thus :
"72. Therefore, a private person becomes
amenable to writ jurisdiction only if he is connected
with a statutory authority or only if he/she discharges
any official duty.
"79. We would like to make it clear that in
view of the law referred to above in cases of property
rights and in disputes between private individuals writ
court should not interfere unless there is any infraction
of statute or it can be shown that a private individual is
acting in collusion with a statutory authority."
In view of the above discussion, we hold that the learned Single
Judge exercised powers under Article 226 of the Constitution since the
subject matter relates to violation of the provisions of Act, Rules and
approved bye-laws. For these additional reasons, we reject the preliminary
objection raised by Mr.Kshirsagar, learned counsel for respondent no.3.
6. Having disposed of the preliminary objection as above, we
now proceed to determine the matter on mrits.
7. The Scientific Cooperative Housing Society Ltd. Laxminagar,
Nagpur, was originally registered with the Registrar, Co-operative Societies,
C.P. & Berar, on 18.11.1937 having registration No. 321. After re-
organization of the States, the Housing Society stood governed by the
provisions of The Maharashtra Co-operative Societies Act, 1960 and
accordingly the bye-laws of the Society were amended and approved by the
District Deputy Registrar, Cooperative Societies and registered on
29.7.1975. The object of the Society was mainly to provide plots for
construction of houses. The appellant- Ramchandra Krushnarao Pitale
made an application for grant of membership to the Society on 13.2.1961,
in response to which he received a letter dated 15.8.1961 (Ex.D-2) issued
by the Honrary Secretary of the Society stating therein that on 13.8.1961
the managing committee of the Society held a meeting and allotted plot
No. 1 in Block J of the layout and the rate per square feet would be 37 nai
paise. Since the appellant wanted a corner plot, additional cost of Rs.50/-
was required to be paid along with other charges. In response to this, the
appellant paid the amount of Rs.3,105/-as per demand on 25.9.1961 for
the plot in question admeasuring 7100 sq. ft. The price at the rate of 37
nai paise per square foot for 7100 sq.ft. (which is factually as revealed now
is 7997 sq.ft.) would be Rs.2960/- (rounded off). The appellant deposited
Rs.3105/- which obviously included share price, membership fee etc. and
accordingly Receipt No. 177 dated 25.9.1961 was issued to him. The
appellant thereafter went on making correspondence requesting the society
to execute the sale-deed in respect of the plot allotted to him. One Shri
Trimbak Baliram Deo filed a civil dispute in the same subject matter, i.e. in
relation to the allotment of plots by the society to various members and by
adding appellant as opponent No.13 in the said dispute along with other
allotees of the plots by a resolution dated 13.8.1961 which was confirmed
on 22.10.1961, and challenged the said resolutions of allotment of plots.
Upon receipt of the said dispute as per the extant provisions, the nominee
of the Registrar of the Cooperative Socieites, Shri Nagarkar, quashed the
minutes of the proceedings dated 13.8.1961 and 22.10.1961 regarding
allotment of plots. The said order of nominee was put to challenge before
the higher authorities and finally was set aside by the Maharashtra Co-
operative Tribunal. The dispute was then transferred to the Cooperative
Court in accordance with the provisions of Maharashtra Cooperative
Societies Act, 1960 which came into force at the relevant time. During
the pendency of the said Dispute No. 420 of 1969 (new number after
transfer to cooperative Court) there was injunction order made by the
Cooperative court in the matter of transfer of suit plots etc. In the
meanwhile, there was correspondence between the appellant and the
society. The said dispute finally stood terminated upon dismissal on
24.8.1992 for want of prosecution and was never restored.
8.
After dismissal of the said dispute the appellant again started
requesting the Society to transfer the plot allotted to him by way of sale-
deed but it appears that due to long lapse of time the office bearers of the
Society changed their mind with a view to give the plot of the appellant to
somebody else and resultantly when the appellant realized that he was
likely to be deceived, he filed Dispute No. 713/93 in the Cooperative Court,
Nagpur and prayed therein that the Society should be directed to execute
the sale-deed of the plot allotted in his favour and also to cancel the
alleged resolution passed in the third week of August 1993 or thereafter
possibly to allot his plot to respondent no.3.
9. Respondent no.1 - society filed its written statement to the
said dispute and denied the claim made by the appellant and during the
course of pendency of the dispute, also amended the written statement vide
written statement dated 22.3.1994.
10. ` In support of his case the appellant examined himself and
was cross-examined. Respondent no.1 did not examine any witness nor
produced any documents before the Court, except relying on the written
statement. The respondent no.3, i.e. the subsequent entrant into the suit
plot filed his written statement and took a stand that the society made him
a member and agreed to sell the plot of the appellant to him. The
respondent no.3 entered the witness box and was cross-examined. The
Cooperative Court after hearing the parties made the impugned judgment
and order dismissing the dispute filed by the appellant, so also the Co-
operative appellate court and finally the learned Single Judge of this Court.
It is in this background the present appeal is before us.
11. Mr.Khapre, learned counsel for the appellant made the
following submissions :
(i) The learned Co-operative Court as well as courts
below committed an error in holding that the disputant failed to
prove that he was enrolled as a member of the society when there
was voluminous evidence on record- both oral as well as
documentary and contemporaneous correspondence duly proved on
record and exhibited before the trial court, which the courts below
have not bothered to look into. In this connection the burden of
proof was on the society and the same was not at all discharged and,
as a matter of fact, not a single witness was examined by the society
to prove the stand taken in the written statement. Respondent
no.1/society miserably failed to prove the same and, on the contrary,
indulged in suppressing material facts and documents despite notice
to produce the documents that was given by the appellant in the first
court which was not even responded. When the notice to admit
documents was given, the documents were readily denied. The
society deliberately refused to produce all the material documents on
record which would have revealed the truth. There is ample
evidence on record to show that despite demand for inspection of
documents in the custody of the society, there was a deliberate
refusal on the part of the society contrary to the provisions of The
Maharashtra Cooperative Societies Act and Rules thereunder and
that was obviously with a view to disable the appellant from proving
his case from the documents in the custody of the society and then to
make a bold argument that the appellant never discharged the burden
of proof that he was a member of the society, that he was allotted the
plot and that he was entitled for execution of the sale-deed of the
said plot and further that he had paid the share money so also the
membership fee. Even the material resolutions under which the plot
was allotted to the appellant and the application for membership
filed by the appellant was not produced by the society. The
respondent no.1/society thus wanted to play the game of hide and
seek.
(ii) The courts below having recorded a finding that there
was no cancellation of allotment of plot to the appellant at any point
of time or cancellation of membership, the fact of allotment of plot
in his favour continues to remain as it is. Thus the courts below have
inconsistently recorded a finding that the plot stands allotted to the
appellant but not the membership though the appellant paid total
amount of Rs.3105 (including the charge of Rs.50/- for corner plot,
share money and membership-fee).
(iii) The courts below committed error in holding that the
appellant had incurred disqualification since he purchased a plot in
other housing society in the year 1971 when as a matter of fact the
bye-laws of both the societies do not at all show any such
prohibition. Even otherwise the appellant would be entitled to a plot
in the society where he had first applied and was allotted the same in
such society. Such a stand could not be allowed to be taken since
the appellant has been waiting for the transfer of the plot by the
respondent no.1/ society right from 1961. The said question was
wholly irrelevant and could not have been allowed to be set up at the
instance of respondent no.1.
(iv) The courts below erred in holding that the dispute was
barred by limitation without considering the correspondence between
the parties and the pendency of the dispute filed by Mr. T.B. Deo and
its result only on 24.8.1992 and the dispute thereafter filed by the
appellant on 7.9.1993for execution of the sale-deed in his favour.
(v) The courts below erred in holding that the dispute was
not maintainable.
12. Mr.Ghare, learned counsel for respondent no.1/society, submitted
as under :
(a) that the initial burden of proof was on the appellant
to prove that he was a member of the society and since he failed to
prove the same by oral or documentary evidence, the courts below
were right in holding that the dispute was not maintainable in view
of the provisions of Section 91 of the Act because a person has to
be a member of the Society.
(b) the documents produced by the appellant before the
Cooperative Court even if taken on their face value would at the
most indicate that there was a paper allotment of the plot J-1 in
favour of the appellant. The Receipt No.177 as per Exh. D-1 filed
by him shows that it was towards cost of the plot only and not
towards the share money and membership fee, (Rs.100/- towards
share money and Rs.5/- towards membership fees).
(c) the courts below have rightly held that mere
payment towards the cost of the plot without admission as member
by following due procedure under bye-laws, no right can be
exercised by the appellant. Even assuming that there was
allotment of plot J-1 in favour of the appellant or that he had made
payment of Rs.3105/-, in absence of any resolution of the
managing committee to admit him as a member and in the wake of
failure on the part of the appellant to prove that he was admitted as
member by particular resolution, no fault could be found out that
the dispute was not maintainable or the appellant being not
member was not entitled to execution of sale-deed of the plot of
the society. The learned counsel however fairly conceded that the
finding recorded by the cooperative court that the order of the
nominee of the Registrar operated throughout is factually wrong
because the same was set aside by the cooperative appellate
Tribunal finally. However, according to the learned counsel, that
by itself would not be sufficient to infer that the appellant would be
entitled to exercise rights of membership of the Housing Society.
(d) As regards the finding regarding limitation,
Mr.Ghare argued that the courts below have examined the fact
about late filing of the dispute by the appellant and therefore the
dispute was barred by limitation. According to the learned
counsel, all these are the findings of facts which cannot be looked
into in letters patent jurisdiction by this Court. Even if the findings
are wrong, necessarily they need not be interfered with. The
Cooperative appellate court has also factually found that the
appellant did not produce application for membership or allotment
of plot nor any resolution admitting him as a member nor any
proof to show that he was a member of the society and therefore
the findings cannot be said to be wrong. The counsel thus urged
this Court to dismiss the letters patent appeal on merits.
13. Mr.Kshirsagar, learned counsel for respondent no.3, who is
admittedly a party affected by the doctrine of lis pendens, argued that respondent
no.3 is a bona fide purchaser for value and has been in possession of the suit plot
for over 30 years. The society has admitted him as a member by the resolution
and that resolution has not been challenged by the appellant by amending the
dispute, so also the resolution of allotment of the same plot J-1 of the appellant
in favour of respondent no.3. The counsel then argued that in the absence of
challenge to the resolution admitting him as a member of society though in the
year 1993, no relief can be granted to the appellant and the sale-deed and
membership conferred on respondent no.3 will have to be confirmed, the same
having been not challenged by a specific prayer in the dispute or by amendment.
The counsel fairly conceded that except filing of written statement the society
did not adduce any documentary or oral evidence. The counsel then pointed out
that respondent no.3 entered into registered agreement for purchasing the said
plot J-1 from respondent no.1/society. The sale-deed has also been executed
pursuant to the Award that was passed by the Cooperative court between the
society and respondent no.3. After the agreement, now sale-deed has been
executed for a consideration of Rs.85 lacs for the plot admeasuring 743.22 sq.
mtrs. in the respondent no.1/society on 16.9.2010 and thus the sale-deed has
become final. The counsel then submitted that even the said compromise award
dated 6.9.2010 in Dispute No. 231 of 1998 filed by respondent no.3 against the
society has not been challenged and therefore the present letters patent appeal
deserves to be dismissed outright with costs.
14. CONSIDERATION :
We have gone through the entire documentary as well as oral
evidence tendered before the cooperative court. We have also gone through the
record and proceedings, evidence and pleadings of the parties. We have also
heard the learned counsel for the rival parties for a few days. First we propose
to take up the issue of membership, allotment of plot and limitation together.
15. At the outset, it is of utmost importance to point out the various
reasons as to why this Court is required to interfere even on merits in its letters
patent jurisdiction. It is an admitted position, as fairly conceded by Mr.Ghare
learned counsel for respondent no1, that in the dispute where several factual
questions were involved, requiring oral as well as documentary evidence which
was admittedly in the custody of the society, the respondent no.1/society chose
not to examine a single witness before the first court on behalf of the society.
Respondent no.1 did not produce and prove a single document relevant to the
case, did not respond to the notice to produce documents that was filed by the
disputant and also did not produce the documents which were demanded.
Respondent no.1 also did not admit any document in response to the notice to
to admit documents. On the contrary, the respondent no.1/society took a stand
and which was accepted by the courts below despite the above factual
background that it was the appellant who did not prove that he was admitted as a
member of the society. The courts below totally ignored the correspondence
duly proved on record by the appellant between the appellant and society and the
Registrar to find out the live link that was duly established by the appellant.
None of the courts even bothered to look into those documents to find out
whether the attempt of the respondent/society to show that the appellant was not
a member and the dispute was barred by limitation and was contrary to evidence
on record. There is a total failure on the part of the courts below on this aspect
of the matter and that is why we are required to interfere in the matter.
Shockingly enough, the courts below relied upon the defence taken by the
society in its written statement treating the written statement as evidence before
the court and thus rejected the dispute filed by the appellant. The case of the
appellant thus will have to be examined with the above preface.
16. The appellant made an application on 13.2.1961 for membership
and allotment of plot to respondent no.1-society. Though a finding has been
recorded by the courts below that he did not produce the said application before
the court or that he never made such application, the courts below ignored
Exh.D-2 dated 15.8.1961 which is a letter issued by the society to the appellant
at his Gwalior address wherein there is a clear reference to his application dated
13.2.1961. In the said letter it is stated that in its meeting dated 13.8.1961 the
managing committee allotted Plot J-1 in his favour and the price was 37 nai
paise per square foot and that he will have to pay Rs.50/- as additional charge
since he wanted a corner plot plus other charges. Pursuant to this letter Ex.D-2
payment was made by the appellant to the tune of Rs.3105/- as per Receipt
No.177 dated 25.9.1961 (Ex.D-1). This receipt shows the amount towards cost
of the plot. The table/chart that was filed by the society in the Cooperative
Dispute No.420 of 1969 (T.B.Deo v. Scientific Society) shows appellant as
defendant in the said dispute with Plot No. J-1, admeasuring 7100 sq.ft. and
share money of Rs.100/- indicated against his name. The chart in the remarks
column against the appellant shows "irregular" and in the column of date of
admission of membership, no date is mentioned. The price quoted is 37 naise
paise per square foot. The cost of the plot admeasuring 7100 sq.ft. Comes to
Rs.2627 + Rs. 50/- for corner plot + Rs.100/- share money + Rs.5/- for
membership = Rs.2782/-. The amount of Rs.3105/- is obviously in excess on all
the counts. The society deliberately withheld these details recorded in its
proceedings books and other relevant records from the Court. It is in the
evidence and Ex. D-13 letter dated 28.8.1966 with reference to letter dated
22.8.1966 issued by the Administrator of the Society appointed by the
Government that the appellant protested by saying that it was high time that the
plot allotted to him was not being transferred to him though his deposits were
lying idle with the society and though order of the nominee of Registrar was
vacated. The Administrator had written to the appellant that it may not be
possible to execute the sale-deed in his favour because of legal complications
and care was being taken to expedite the matter. On 13.9.1966 Ex.D-14
appellant again wrote to the Administrator that sale-deed should be executed in
his favour and the delay was caused for baseless and malicious reasons. On
4.10.1966 (Ex.D-11) the Administrator informed the appellant that execution of
sale-deed will not be delayed by a day as soon as the legal position is clarified.
On 2.4.1967 (Ex.D-12) in response to the letter dated 30.3.1967 of the appellant,
the Administrator wrote to him that though the dispute filed by Mr. T.B. Deo
was dismissed, a revision before the Government was filed and stay was
obtained and therefore no further action to implement the resolution could be
taken. He again wrote a letter dated 27.7.1968 (Ex. D-16) to the Secretary of the
Society and after asserting that he being a member was allotted a plot but was
being treated differently. By letter dated 15.10.1970 (Ex. D-9) the society gave
similar reply to him. Exh. D-3 is a letter addressed by the appellant to the
society of which the very first page shows assertion by the appellant that he is a
member of the society and was allotted a plot by allotment letter dated 15.8.1961
and had paid the required share money and membership fee etc. and was given a
receipt. He referred to 12 persons to whom different plots were allotted and
against his name plot J-1 is shown. He also made a grievance that the society
had executed a sale-deed in favour of eight persons whose names were given in
the said letter. Under the resolution dated 15.8.1961 it was agreed to issue
necessary share certificates as sale-deeds to other allottees were executed for
their respective plots. No injustice should be done to the appellant or three
others as per the decision of the committee dated 13.8.1961.
17. On 20.10.1970 the society wrote a letter Ex.D-9 to the appellant
in response to his application dated 15.10.1970 stating therein that the managing
committee was made aware about the grievance made by the appellant, but since
the dispute filed by T.B. Deo was pending in the court and the appellant was a
party to the suit as defendant no.13, no action could be taken further as it would
amount to contempt and everybody will have to wait till the decision of the
court. In the letter dated 3.9.1972 Exh.D-8 written by the society to the
appellant it was stated with reference to his application dated 28.8.1972 that the
delay in executing the sale-deed in his favour in respect of the plot allotted to
him was due to Civil Suit No. 413 of 1969 and Civil Suit No. 420 of 1969 in
which the appellant is one of the parties and there is an injunction to part with
any plot and that is why the application to execute the sale-deed in his favour
could not be entertained. There is one sentence which is quoted below "
"As for non receipt of notice of meeting, we have sent
notices to you every year under certificate of posting at your
address supplied by you."
18. The appellant also wrote letters Exs. D-15 (May 1982) to the
Divisional Joint Registrar, Cooperative Societies, Nagpur, repeating his
grievance . To know the state of mind of the appellant, it is better to quote
below a small portion from letter Exh. D-16 dated 27.7.1968 -
"I hope you must have by now become conversant with
the injustice done towards some of the members who were
allotted plots by the Society vide resolutions dated 13.8.1961 and
22.10.1961. I am one of those allottees and have been trying to
seek justice for long. I had paid the total cost of the plot on
13.9.1961 but inspite of my requests the registration was
postponed by the Arbitrator for some reason or the other, even
after the order of the Assistant Registrar I. Dated 30.6.1966 which
set at rest the so-called dispute. Since I am posted at Gawalior, it
is very difficult for me to knock at the door of the society
frequently. Now that the new Managing Committee has come in,
I hope the justice would be done in my case and the plot allotted
to me would be registered in my name early so that I may be able
to take up construction of house early."
Under that letter he thus prayed for justice. On 22.8.1992 (D-4) he again wrote
a letter to the society and repeated the facts and again prayed that justice should
be done to him since he is waiting for 30 long years. On 14.8.1993 he filed an
application to the Society praying for inspection of the records of the society
since he reliably learnt that respondent no.3 was being favoured in respect of
the plot which was allotted to him and for which he had paid the entire amount
way back on 13.8.1961. He was never given inspection as sought by him.
Section 39 of the Maharashtra Cooperative Societies Act, 1960 reads thus :
"Every society shall keep, at the registered address of
the society, a copy of this Act and the rules and of its bye-
laws, and a list of members, open to inspection to the public
free of charge, during office hours or any hours fixed by the
society therefor."
Perusal of the above provision shows that the society is bound to give
inspection to the public while in the instant case it was the appellant who
claimed to be a member.
19. Resolution No. 4 dated 15.8.1968 (proceedings-book withhled)
passed by the society is to the following effect :
"The cases of the following persons were gone through for consideration
of issue of share certificate.
1. Shri R.K. Pitale 2. Dr. B.R. Kate
(Appellant)
3. Shri M.J. Godase 4. Mr. H.P. Thatte
These persons have paid their share money and admission fee in 1961. Their
applications so far they relate to membership were in order according to law and
bye-laws of the society.
They did not then possess any site for house or a house in Nagpur.
Each individual case was considered.
Each member agreed that admission to membership and allotment of plot
are different subjects. Under the law there is no provision that a member must
have a plot in the layout. Several other applicants who were not sold plots have
been admitted as members and issued share certificates in the past. There is no
reason why these persons be deprived of this right. The committee therefore
resolved that they shall be issued necessary share certificate."
20. On 16.11.1994 the disputant had given notice to produce
documents under Order 11 Rule 16 of Code of Civil Procedure to the society to
produce the documents total four in number including the entire proceeding
book of managing committee, managing committee resolution in respect of
confirmation of the resolution dated 13.8.1961, original cash book entry in
respect of payment of plot J-1 and in respect of payment of share and
membership money, but it is worth noting that the society did not produce those
documents before the Court to enable it to find out the truth. Thereafter an
application (Ex.34) was filed before the Court in the dispute praying for
directions to the society to produce documents mentioned in the said notice
dated 16.11.1994 to produce documents but nothing was produced by the
society. The appellant had filed his evidence (Ex.36) and had narrated all the
facts in his evidence. As regards the delay, he narrated the following facts in
para 9B, which we quote below :
" Without prejudice to right to claim that cause of action
for filing the dispute only arose on 24.8.1991, i.e. after dismissal
of dispute No. 420/69 (new dispute No. 839/90). I say that I
believe the representation of the society that society will execute
the sale-deed in my favour after the decision of dispute No.
420/69 (new dispute No. 839/90) and therefore I did not file any
dispute till the decision of said case and, therefore, I was eagerly
waiting under bonafide belief. Only after decision of the said
case, having seen that society is not ready to execute the sale-
deed but trying to dispute of the plot by entering into negotiation
with opponent no.3, the present dispute is being filed by me. I
thus say and state that there are sufficient reasons for
condonation of delay in filing the present dispute before this
Hon'ble Court.
21. The aforesaid evidence has not at all been challenged in the cross-
examination. The dispute that was filed by Mr. T.B. Deo came to be dismissed
on 24.8.1992 and then by Exh. D-4 dated 22.8.1992 the appellant asked for
execution of the sale-deed in his favour. The appellant also gave a telegraphic
notice dated 26.8.1993 asking the society to execute the sale-deed but there was
no response at all and lastly he filed a dispute on 7.9.1993.
22. From the above discussion, the following conclusions which
ought to have been drawn by the courts below must be drawn :
(i) during the entire correspondence between the
appellant and the society from 15.8.1961 till 26.8.1993 and even
when the society was in the control of the Administrator there was
not even a whisper or even a casual mention that the appellant who
was forcefully pursuing his cause for execution of the sale-deed
being a member was not a member of the society and therefore
had no reason to ask for execution of the sale-deed and this state
of affairs went on till the dispute was filed on 7.9.1993 and it is for
the first time in written statement the society took a stand in the
written statement that the appellant was not a member.
(ii) Except for filing the written statement and amended
written statement the society tactfully and in a most strategic
manner chose not to adduce any oral evidence in support of its
written statement/defence and also chose to withhold the
proceedinge books, cash books, proceeding of confirmation of
resolutions and all the relevant record of the society despite being
called upon to produce the same by the disputant by giving notice
to produce the documents, notice to admit the documents and so on
and so forth. The society indulged in a calculated plan to withhold
every important documents and information from the court though
they were in its custody with an eye on the plea to be raised that
the appellant failed to discharge the initial burden of proof that he
was a member of the society. Hence the courts below ought to
have draw adverse inference against respondent no.1/society.
(iii) the admitted fact that the society had decided the
price of the plot at 37 naise paise per square foot and looking to the
area that was shown in Plot J-1, i.e. 7100, the costs would be
Rs.2627 + 50 + 5 + 100 = 2782 below the amount of Rs.3105/-
which was deposited by the appellant under the said Receipt No.
177 (Exh. D-1) dated 25.9.1961.
(iv) If based on Ex. D-1 it was the case of the society
that under said receipt Ex. D-1, the society had received only the
price of the plot and not the share money or membership fee so that
the appellant could have claimed to be a member, it is significant to
note that right from 1961 till this date the society admittedly has
not taken any steps nor communicated to the appellant that he had
paid excess amount than the price of the plot and that the same was
being refunded to him or that he should come and take the excess
amount. This conduct on the part of the society and the stand in
the entire correspondence between the society and the appellant
that because of the pendency of the suit the sale-deed could not be
executed and that the society realised that there was injustice to
him, show that the society always treated him as member. The
language used in the correspondence by the society so also the
resolution dated 15.8.1961, to our mind, clearly shows that the
society for all the purposes treated the appellant as a member of the
society and never wanted to take the stand that he was not a
member of the society or that his membership at any point of time
was cancelled or that he was disentitled for membership of the
society for any reason. On the contrary, the language used in the
resolution dated 15.8.1968 clearly shows that the society decided
to issue a sale certificate in favour of the appellant who had already
paid the amount towards the share money etc. The very 4th line of
the resolution dated 15.8.1968 clearly shows about the payment of
share money and admission fee in the year 1961. We quote below
a few sentences from the said resolution -
"These persons have paid their share money and
admission fee in 1961. Their applications so far they
relate to membership were in order according to law
and bye-laws of the society."
This mention in the resolution itself fully falsifies the case of the
society that the appellant never paid the share money and
additional fee for membership. The reason given by the courts
below that the appellant did not produce any application or
produce any resolution admitting him as a member, in our opinion,
is a lame excuse to support the unjustifiable reasons given by them
in the light of the above recitals. As earlier pointed out, the
application for membership or the resolution etc. were not
produced by the society deliberately before the courts which were
in their custody and if at all they were not in their custody then
they were never prevented to depose on oath before the courts
below about non-existence thereof.
(v) The letters written by the society to the appellant
right from 1961, referred by us above, above clearly show that the
Society full recognized the appellant as a member, entitled to plot
and further that the plot was allotted to him and that he was treated
as a member of the society and everything was alright in his case,
but the sale-deed could not be executed in his favour because of
pendency of litigation in the courts below. No other reason was
given in the entire correspondence. It is further not in dispute that
there is not a single letter or resolution produced by the society to
show that at any point of time the appellant was told that the sale-
deed would not be executed in his favour for any good reason and
his claim for execution of sale-deed was rejected outright for any
other reason. On the contrary, the correspondence shows that the
sale-deed would not be delayed even by a day but could not be
executed because of pendency of litigation in the court. Therefore,
in the absence of any refusal to execute the sale-deed as demanded
by him right from 1961, he filed the dispute on 7.8.1993 i.e.
immediately after the dispute filed by Mr.T.B.Deo was dismissed
on 24.8.1992 wherein he was defendant no.13 and injunction was
operating. Therefore it was well within six years from the date of
cause of action which accrued to him after dismissal of dispute
filed by Mr.Deo.
23. A finding has been recorded by the Cooperative Court in para 19
of its judgment, which we quote as under :
"However, in the present case, it is not proved that the
society has cancelled the allotment but from the pleading it
appears that the nominee of the Registrar, Cooperative Societies
has quashed and set aside the allotment. Therefore, there is no
question of issuing notice by the society to the disputant and
hence these authorities are not applicable in the present dispute."
We also quote para 20 from the said judgment -
"The society has nowhere contended that it has cancelled
the resolution dated 13.8.1961 or 20.10.1961. Therefore, there is
no substance in the contention of the disputant that the opponent
society has passed the resolution in third week of August 1993
cancelling the allotment of Plot No. J-1 in his favour."
24. Thus it is clear that there is no cancellation of plot J-1 which was
allotted to the appellant and the said finding of fact is binding on the society. It
is unfortunate that the Cooperative Court ignored the fact that the order made by
the nominee of the Registrar was admittedly quashed and set aside by the Co-
operative appellate tribunal but that reason has been incorporated by the trial
Court in order to dismiss the dispute . We quote below relevant portion from 18
of the judgment of Co-operative Court -
"But the disputant himself has stated that Shri T.B.Deo
has raised dispute as to the resolution dated 13.8.1961 and
20.10.1961 but he has also not produced on record any
evidence as to the orders passed in dispute raised by Shri
T.B.Deo. Therefore, there is no any alternative but to believe
the contention of the opponents no.1 and 2 that the nominee of
the Registrar has quashed and set aside the resolution dated
13.83.1961 and 20.10.1961."
25. It is unfortunate that the Cooperative Court relied on the order
made by the nominee of the Registrar which was already quashed and set aside
by the Cooperative appellate Tribunal and which has become final. It is thus
clear from the above that on facts as well as from the evidence- oral as well as
documentary, the conduct of the society, in our opinion, is deprecable, arbitrary,
causing harassment to a senior citizen, and having no regard for rule of law.
From the above, we therefore record a clear finding in view of the perversity in
the matter of decision of a dispute by the courts below that we are entitled to
interfere in letters patent jurisdiction in view of the above peculiar situation.
We, therefore, hold that the appellant was a member of the society and was
allotted plot J-1 in his favour and was entitled to the execution of the sale-deed
in his favour by the society. The finding recorded in relation to limitation in the
above background is totally erroneous on law as well as on facts and has to be
rejected. We hold that the dispute was very well within limitation.
26. Since we have held that the appellant was a member of the
society, the dispute was maintainable before the Cooperative Court.
Consequently, we set aside the finding of the courts below that the dispute was
not maintainable.
27. The submission made by Mr.Kshirsagar, learned counsel for
respondent no.3, that the appellant did not challenge the resolution admitting
respondent no.3 as a member and thereafter obtained a sale-deed from the
society which has been placed on record for the first time and that he is a bona
fide purchase for value though he was respondent in the dispute filed by the
appellant, is liable to be wholly rejected. The only answer is that respondent
no.3 cannot set up any case in view of the doctrine of lis pendens. Whether or
not he was admitted as a member of the society in the year 1993 or there was
execution of the agreement of sale and thereafter sale-deed in his favour in
2010, neither the resolution admitting him as a member nor the sale-deed
cannot at all bind the appellant. Whether the resolution admitting him as a
member or agreement of sale executed were challenged or not would make no
difference since the doctrine of lis pendens would squarely apply. We find that
the sale-deed dated 16.9.2010 that was executed by the society in favour of
respondent no.3 shows the area of plot J-1 as 743.22 sq. mtrs. (7997.05 sq.ft.) as
per Nagpur Improvement Trust Release Letter No. EE (SW), 227, dated
1.7.1997 which appears to be subsequent in point of time. The appellant would
be entitled to the same area as he was allotted Plot No. J-1 of which area finally
Nagpur Improvement Trust has determined as 7997.05 sq.ft. Respondent no.3
was a party to the dispute filed by appellant from day one and hence is not a
bona fide purchaser. We, therefore, reject the claim of respondent no.3 made
before us.
28. The submission about the appellant acquiring membership and
plot in the year 1971 in other society is liable to be rejected since his
membership first in point of time, i.e. in the year 1961, with respondent no.1/
society must prevail. Further there was no bar in the bye-laws of both socieites
to prohibit dual membership at least in 1971. We thus reverse the said finding
also. We further find that appellant would not be liable to pay stamp-duty on the
sale-deed at the rate fixed by the Government after 24.8.1992 when dispute filed
by Mr.T.B.Deo was dismissed and the respondent no.1 had no reason not to
execute the sale-deed. Hence, we hold that the respondent no.1/society shall pay
the difference of stamp duty on the sale-deed at the rate fixed by the
Government after 24.8.1992.
29. In the result, we make the following order.
(i) Letters Patent Appeal No. 396 of 2009 is allowed with costs.
(ii) Impugned judgments in Dispute No. 713 of 1993 dated 20.3.2007
passed by the Cooperative Court, Nagpur, Appeal No. 35 of 2007 passed by the
Cooperative Appellate Court, Mumbai, on 24.7.2008 and impugned judgment in
Writ Petition No. 4834 of 2008 dated 15.6.2009 passed by the learned Single
Judge of this Court are quashed and set aside.
(iii) Dispute No. 713 of 1993 is decreed with costs.
(iv) Award is passed in favour of the appellant and against the
respondents 1 to 3. Respondent no.1/society is directed to execute the sale-deed
in respect of Plot No. J-1, area 743.22 sq. mtrs. (7997.05 sq. ft.) mouza Ajani,
C.S. No. 459, Sheet No. 85 as per release letter No. EE(SW), 227, dated
1.7.1997 within a period of twelve weeks from today and also to put the
appellant in possession thereof.
(v) Respondent no.3 is directed to handover peaceful possession of
the suit plot within twelve weeks. Upon failure, the Award shall be executed
through Court.
(vi) The difference of stamp duty after 24.8.1992 fixed by the
Government shall be paid on the sale-deed by respondent no.1/society.
(vii) Award be drawn up accordingly. Certificate under Section 98(a)
of the Maharashtra Cooperative Societies Act, 1960 be issued.
JUDGE JUDGE
