Bombay High Court
Baba Deorao Charde And Another vs Shalik Marotrao Pande on 28 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.644 OF 2006
Baba s/o Deorao Charde,
Aged about 58 years,
Occ: Cultivator,
R/o Kurzadi,
Tah. & Dist. Wardha. ....... APPELLANT
...V E R S U S...
1] Shalik s/o Marotrao Pande,
Aged about 52 years,
Occ: Cultivator,
R/o Kurzadi,
Tah. & Dist. Wardha.
2] Laxman s/o Gulab Pande,
Aged - years,
Occ: Cultivator,
R/o Kurzadi,
Tah. & Dist. Wardha. ....... RESPONDENTS
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Shri A.S. Manohar, Advocate for Appellant.
Shri V.N. Morande, Advocate for Respondents.
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CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 28
ORAL JUDGMENT
1] The trial Court dismissed Regular Civil Suit No.208 of 1998
filed by the appellant for declaration of title and possession of the suit
property on 03.01.2003 and by the same common judgment, Regular
Civil Suit No.59 of 1998 filed for specific performance of contract was
decreed. The appellant preferred two separate appeals challenging the
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common judgment delivered by the trial Court and both these appeals
have been dismissed on 02.09.2005, hence this second appeal.
2] On 15.06.2007, this Court passed an order admitting the
appeal and framing the substantial question of law as under:
"Whether an agreement of sale in contravention of the
provisions of section 48 (d) and (e) of the Maharashtra
Cooperative Societies Act, 1960 which provides that any such
alienation shall be void, could be enforced in the Court of
law?"
It cannot be disputed that if the aforesaid question is answered holding
that the agreement dated 16.01.1991 at Exhibit 30 for sale of the
property executed by the appellant in favour of the respondent is held to
be in contravention of Section 48 (d) and (e) of the Maharashtra
Cooperative Societies Act, 1960, then the decree for specific performance
of contract will have to be set aside, not being enforceable in the Court
of law.
3] The provisions of Section 48 (d) and (e) of the Maharashtra
Cooperative Societies Act, 1960 being relevant are reproduced below:-
48. Charge on immovable property of members
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borrowing from certain societies
(a) ---
(b) ---
(c) ---
(d) no member shall alienate the whole or
any part of the land or interest therein, specified in
the declaration made under clause (a) or (b) until
the whole amount borrowed by the member
together with interest thereon, is repaid in full:
Provided that, it shall be lawful to a member
to execute a mortgage bond in respect of such land
or any part thereof in favour of a Co-operative
ig Agriculture and Rural Multipurpose Development
Bank or of the State Government under the
Bombay Canal Rules made under the Bombay
Irrigation Act, 1879 or under any corresponding
law for the time being in force for the supply of
water from a canal to such land, or to any part
thereof:
Provided further that, if a part of the
amount borrowed by a member is paid to the
society with the approval of the Central Bank to
which it may be indebted may, on an application
from the member, release from the charge created
under the declaration made under clause (a) or
(b), such part of the movable or immovable
property specified in the said declaration, as it may
deem proper, with due regard to the security of the
balance of the amount outstanding from the
member;
(e) any alienation made in contravention
of the provisions of clause (d) shall be void;
Prima facie three things are required to be established to attract the
aforesaid provisions - (i) that the plaintiff was the Member of
Cooperative Society, (ii) he had taken loan, and (iii) there was a charge
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created over the suit property as a security for repayment of loan.
There is a dispute as to the membership of the appellant of the Society.
There is absolutely nothing on record to show that any charge was
created over the suit property by the society.
4] Be that as it may, the question involved is no longer res
integra, in view of the decision of this Court in case of Narayan Kisan
Gade vs. Machindranath Kundlik Tarade and another reported in 1994
Mh.L.J. 558, wherein the provisions of Section 48 (d) and (e) of the said
Act are considered along with Section 65 of the Indian Contract Act.
This Court has taken a view that the challenge to such transaction can
only be raised by the society on the ground that it is void and it is not for
the vendor to take benefit of clauses (d) and (e) of Section 48 of the said
Act to avoid liability arising out of the execution of the agreement to
sale. In the present case, the challenge is not by Society, but it is by a
person claiming to be a member of Society. In view of this, the
substantial question of law is answered holding that both the Courts
below were right in passing a decree for specific performance of contract
dated 16.01.1991, which was enforceable in law. The second appeal is
dismissed.
JUDGE
NSN
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C E R T I F I C A T E
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correct copy of original signed Judgment."
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P.A. to Hon'ble Judge
