Mr. Mulchandani Amar Sadhuram vs Mr. Haresh Shivaldas Bodani And ...
2018 Latest Caselaw 1109 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                                   WRIT PETITION NO. 10917 OF 2017


            Mr. Mulchandani Amar Sadhuram,                                                     ]
            Age-Adult, Occ.-Business,                                                          ]
            R/at. Pimpri, Pune 411 017.                                                        ]      ...Petitioner

            Versus

1           Mr.Haresh Shivaldas Bodani,                                                        ]
            R/at. Plot No.248, Shagun Chowk,                                                   ]
            Pimpri, Pune-411 017.                                                              ]
2           Mr.Haresh M. Aswani,                                                               ]
            R/at. H.B.31/3,                                                                    ]
            Pimpri, Pune-411 017.                                                              ]
3           The Returning Officer,                                                             ]
            Seva Vikas Co-operative Bank Ltd.,                                                 ]
            Pimpri, Pune.                                                                      ]
4           The Seva Vikas Co-operative Bank Ltd.,                                             ]
            Pimpri, Pune-411 017.                                                              ]
5           Mulchandani Manohar Sadhuram                                                       ]
                                                                                               ]
6           Matnani Dr. Gurbux B.                                                              ]
                                                                                               ]
7           Ramchandani Vijaykumar Gopichand                                                   ]
                                                                                               ]
8           Brahmankumar Narendra Pandurang                                                    ]
                                                                                               ]
9           Masand Pankaj Prakash                                                              ]
                                                                                               ]
10          Bhojwani Dhiraj Sadhu                                                              ]
                                                                                               ]
11          Pamnani Prakash Shivandas                                                          ]
                                                                                               ]

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12          Bharati Prakash Nand                                                               ]
                                                                                               ]
13          Mulchandani Daya Ashok                                                             ]
                                                                                               ]
14          Mangtani Dipa Jivat                                                                ]
                                                                                               ]
15          Sawant Rajesh Popat                                                                ]
                                                                                               ]
16          Ahirrao Chandrashekhar Prataprao                                                   ]
                                                                                               ]
17          Rajput Suresh Amarsinha                                                            ]
                                                                                               ]
18          Mulchandani Ashok Sadhuram                                                         ]
                                                                                               ]
            Notice of Respondent Nos.3 to 18 to be                                             ]
            served on Bank address:                                                            ]
            Seva Vikas Sahakari Bank Ltd.,                                                     ]
            Pimpri, Pune.                                                                      ]      ....Respondents


                                                          ALONG WITH
                                   WRIT PETITION NO. 10918 OF 2017


            The Seva Vikas Co-operative Bank Ltd.,                                             ]
            Co-operative Society registered under                                              ]
            M.C.S. Act 1960,                                                                   ]
            Having its registered office at Seva                                               ]
            Bhavan, Near Sadhu Vaswani Garden,                                                 ]
            Pimpri, Pune-411 017.                                                              ]      ...Petitioner

            Versus

1           Mr.Haresh Shivaldas Bodani,                                                        ]
            R/at. Plot No.248, Shagun Chowk,                                                   ]
            Pimpri, Pune-411 017.                                                              ]
2           Mr.Haresh M. Aswani,                                                               ]
            R/at. H.B.31/3,                                                                    ]
            Pimpri, Pune-411 017.                                                              ]

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3           The Returning Officer,                                                             ]
            Seva Vikas Co-operative Bank Ltd.,                                                 ]
            Pimpri, Pune.                                                                      ]
4           Mulchandani Manohar Sadhuram                                                       ]
                                                                                               ]
5           Matnani Dr. Gurbux                                                                 ]
                                                                                               ]
6           Ramchandani Vijaykumar Gopichand                                                   ]
                                                                                               ]
7           Brahmankar Narendra Pandurang                                                      ]
                                                                                               ]
8           Masand Pankaj Prakash                                                              ]
                                                                                               ]
9           Bhojwani Dhiraj Sadhu                                                              ]
                                                                                               ]
10          Pamnani Prakash Shivandas                                                          ]
                                                                                               ]
11          Bharati Prakash Nand                                                               ]
                                                                                               ]
12          Mulchandani Daya Ashok                                                             ]
                                                                                               ]
13          Mangtani Dipa Jivat                                                                ]
                                                                                               ]
14          Sawant Rajesh Popat                                                                ]
                                                                                               ]
15          Ahirrao Chandrashekhar Prataprao                                                   ]
                                                                                               ]
16          Rajput Suresh Amarsinha                                                            ]
                                                                                               ]
17          Mulchandani Ashok Sadhuram                                                         ]
                                                                                               ]
18          Mulchandani Amar Sadhuram                                                          ]
                                                                                               ]
            Notice of Respondent Nos.3 to 18 to be                                             ]
            served on Bank address:                                                            ]
            The Seva Vikas Sahakari Bank Ltd.,                                                 ]
            Pimpri, Pune.                                                                      ]      ....Respondents

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     •     Mr.P.S. Dani, Senior Advocate a/w. Mr.S.R. Nargolkar i/b.
           Mr.Swapnil S. Mohite for Petitioner in WP/10917/2017.
     •     Mr.N.V. Walawalkar, Senior Advocate a/w. Mr.S.R. Nargolkar i/b.
           Mr.Omkar Vasant Amberkar for Petitioner in WP/10918/2017.
     •     Mr.Dhrupad Sopan Patil for Respondent Nos.1 and 2 in both Writ
           Petitions.
     •     Mr.Ketan Joshi i/b. Ergo Juris for Respondent No.15 in
           WP/10917/2017 and for Respondent No.14 in WP/10918/2017.


                                 CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.


RESERVED ON                                 : 17 th JANUARY, 2018.
PRONOUNCED ON                               : 30 th JANUARY, 2018.


JUDGMENT :

1] Rule. Rule made returnable forthwith. Heard finally with

consent of learned counsel for both the parties.

2] Both these Writ Petitions are arising between the same

parties and involve a common question of fact and law, hence they are

being decided by this common judgment.

3] By these Writ Petitions, the Petitioners are challenging the

orders dated 23rd August 2017 passed by the Member, Maharashtra

State Co-operative Appellate Court, Mumbai, Bench at Pune in

Revision Application Nos.31 of 2017 and 32 of 2017, in which the

orders dated 7th March 2017 passed by the Judge, Co-operative Court

No.1, Pune, below Exhibit Nos.18, 41 and 111 in Dispute No. 39 of 2015

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were challenged.

4] The applications at Exhibit Nos.18 and 41 were filed by the

Petitioner-Bank herein and the application at Exhibit No.111 was filed

by the Petitioner - Original Respondent No.17 for rejection of the plaint

under Order-7 Rule 11(a) of the Code of Civil Procedure (for short,

"C.P.C."), on the count that it does not disclose the entire cause of

action.

5] The Petitioner, in WP No.10918 of 2017 is "The Seva Vikas

Co-operative Bank Ltd" (for short, "the said Bank") and the Petitioner

in WP No.10917 of 2017 is "Mr.Mulchandani Amar Sadhuram", who is

the elected Member and Chairman of the Board of Directors of the said

Bank. Respondent No.3 is the Returning Officer. The Election for the

Members of the said Bank for the period 2014-2019 was held on 14 th

January 2015, in which, Petitioner-Mr.Mulchandani Amar Sadhuram

and other members were declared elected as unopposed. Respondent

Nos.1 and 2 being aggrieved by the entire process of conduct of the

said Election had challenged the results of the election by filing

Dispute No.39 of 2015 before the Co-operative Court.

6] In the said Dispute, the Petitioners herein filed at Exhibit

Nos.18, 41 and 111, contending inter-alia that, the Respondent Nos.1

and 2 are challenging the bye-laws of the said Bank, which have been

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amended from time to time to suit the functioning and requirements of

the said Bank. The said bye-laws are already challenged by

Respondent Nos.1 and 2 before the Competent Authorities and they

were declared to be legal and valid. Respondent Nos.1 and 2 have,

however, not mentioned the various orders in relation thereto.

Therefore, for non disclosure of entire cause of action, the chain

comprising all the events which constitute the cause of action is

incomplete. Hence, the petition was liable to be dismissed. It was

submitted that, the orders which Respondent Nos.1 and 2 should have

disclosed in the Dispute were dated 21st December 2010, 29th June

2011 and 6th March 2013. It is submitted that, it being an Election

Dispute, sans the relevant averments made in the petition raising the

Dispute, challenging the Election, the Dispute itself was not

maintainable and hence, it was liable to be rejected for non disclosure

of entire cause of action under Order-7 Rule-11(a) of C.P.C..

7] These applications at Exhibit Nos.18, 41 and 111 came to

be resisted by Respondent Nos.1 and 2 contending inter-alia that

elaborate and more than sufficient averments are made in the Dispute

to show how the amendment in the bye-laws of the said Bank has

resulted into depriving Respondent Nos.1 and 2 from contesting the

Election and how the Nomination Form of Respondent No.2 came to be

wrongly rejected by the Returning Officer. It was submitted that the

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averments in the petition, raising the Dispute are not only in detail but

they also disclose the cause of action for filing the Dispute and hence,

no case was made out to reject the petition, at-least under Order-7

Rule-11(a) of C.P.C..

8] The Co-operative Court, vide its impugned order found that

the averments in the petition refer to various events which has

resulted, according to Respondent Nos.1 and 2, in vitiating the

Election process and hence, as there was sufficient cause of action

disclosed in the petition, there was no reason to reject the same.

9] When this order was challenged by the Petitioners before

the State Co-operative Appellate Court Mumbai vide Revision Nos.31

of 2017 and 32 to 2017, the Co-operative Appellate Court confirmed

the orders of the Co-operative Court, by holding that the petition

discloses sufficient cause of action and hence, it cannot be dismissed

or rejected under Order-7 Rule-11(a) of C.P.C..

10] While challenging these impugned orders, the submission

of learned Senior Counsel for the Petitioners is that the Dispute itself

was not maintainable under Section 91 of the Maharashtra Co-

operative Societies Act, 1960. According to him, the law requires that

this being a proceeding challenging the Election, strict compliance is

necessary as regards the pleadings, which is conspicuously lacking in

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the instant case, as the Respondent Nos.1 and 2 have not disclosed the

various orders passed by the Competent Authorities upholding the

validity of amendments in bye-laws of the said Bank and thus, not

disclosed the entire chain of events. Further, it is submitted that the

basis of the Election Dispute raised by Respondent Nos.1 and 2 being

the challenge to amendment in bye-laws and as that challenge, the Co-

operative Court cannot decide in the Election Petition filed under

Section 91 of the Maharashtra Co-operative Societies Act, this petition

itself was not maintainable. However, neither the Co-operative Court

nor the Revisional Court has considered this important aspect of the

matter; therefore, according to learned counsel for the Petitioners, the

impugned order passed by the Co-operative Court and confirmed by

the Revisional Court needs to be set-aside.

11] In support of this submission, learned counsel for the

Petitioners has relied upon the judgment of this Court in the case of

Madhavrao Bhujangrao Kinhalkar vs. Ashok Shankarrao Chavan &

Ors., 2013 (1) Mh.L.J. 958 , wherein the Election Petition was filed

under the Representation of the People Act, 1951, on the allegation of

malfunctioning of the EVMs in the Election. As it was found that the

petition did not contain proper pleadings with material particulars in

respect of intentional tampering and malfunctioning of the EVMs and

only a vague allegation was made, it was held that unless and until it

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was pleaded that someone had access to the EVMs and those

machines were tampered and it was at the instance of Respondent

No.1, the vague allegations made in the petition, in that behalf cannot

sustain. In the light of the decisions of the Apex Court in the case of

Samant vs. George Fernandez, AIR 1969 SC 1201, Virendra Nath

Goutam vs. Satpal Singh and others, (2007) 3 SCC 617 and Hari

Shankar Jain vs. Sonia Gandhi, AIR 2001 SC 3689 , it was further held

that, in the Election Petition all material facts are required to be stated

and if they are not stated, the petition is liable to be dismissed on the

ground that the case would be covered by Clause (a) of Sub-Section (1)

of Section 83 of the Representation of the People Act, 1951, read with

Clause (a) of Rule11 of Order-7 of C.P.C.. In paragraph No.24,

therefore, it was further held that as the petition based on

assumptions and presumptions, apprehensions, suspicions and innate

desires sans reality cannot be tenable.

12] Learned counsel for the Petitioners has also placed

reliance on another judgment of this Court in the case of Rashmi

Digambar Bagal vs. The Maharashtra Election Commissioner & Ors.,

Application No.5 of 2016 in Election Petition No.4 of 2014 dated 21 st

September 2016, wherein also, while considering the provisions of

Section 83 of the Representation of the People Act, 1951, it was held

that, "under Section 83(1) of the said Act, it is obligatory on the part

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of the election Petitioner to set forth full particulars of any corrupt

practice alleged by him. In other words, the particulars relating to

corrupt practice should not be lacking in any respect. One who reads

the averments relating to corrupt practice should be in a position to

gather every minute detail about the alleged corrupt practice such as

the names of the persons, the nature of the alleged corrupt practice

indulged in by such person or persons, the place, the date, the time

and every other detail relating to the alleged corrupt practice".

13] It was further held that, "in the filing of an election petition

challenging the successful election of a candidate, the election

petitioner should take extra care and leave no room for doubt, while

making any allegation of corrupt practice indulged in by the

successful candidate and that he cannot be later on heard to state that

the allegations were generally spoken to or as discussed sporadically

and on that basis the petition came to be filed".

14] Learned counsel for the Petitioner has then placed reliance

on the judgment of the Madras High Court, in the case of K.R.

Ramaswamy @ Traffic ... vs. The Chief Election Commissioner in

Election Petition Diary No..22137 of 2014 dated 29 th April 2015,

wherein also, the Election Petition was filed under Sections 80 to 84

and Section 100 of the Representation of the People Act, 1951, and in

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paragraph No.8 of the said order it was held that, " it is also essential

for the election petitioner to aver by pleading material facts that the

result of the election insofar as it concerned the returned candidate

has been materially affected by such breach or non-observance". It

was further held that, "such material facts need to be pleaded and

pleading in Election Petition cannot be vague".

15] Thus, perusal of these authorities, on which the reliance is

placed by learned counsel for the Petitioners, make it clear that these

authorities pertain to the Election Petition filed under the

Representation of the People Act, 1951. The said Act contains a

specific provision in Section 83, which lays down as to what should be

the contents of the petition. It reads as follows:

"83. Contents of petition.--

(1) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:..."

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16]                   Thus, the Election Petition filed under Representation of

the People Act, 1951, has to comply with a mandatory provision

relating to setting forth full particulars of any corrupt practice or the

concise statement of the material facts on which the Petitioner relies

and in view thereof in those authorities, it was held that, "if the

allegations are vague, there is breach of mandatory provision of

Section 83(1) of the said Act".

17] As against it, there is no such provision in Maharashtra

Co-operative Societies Act, 1960. Under this Act, the disputes relating

to Election are covered under Section 91 and it provides that, any

dispute touching the Constitution, elections of the committee or its

officers, conduct of general meetings, management or business of

society shall be referred by any of the parties to the dispute to the Co-

operative Court. This provision nowhere states that the dispute

referred to Co-operative Court should contain the particular details or

the material facts. The Maharashtra Co-operative Societies Act, 1960,

thus is conspicuously silent about similar such provision like Section

83 of the Representation of the People Act, 1951.

18] It is true that the absence of such provision does not

absolve the Respondent Nos.1 and 2, who had filed the Dispute, from

stating all the material facts on which they are challenging the

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Election of the successful candidates and hence it has to be considered

whether such material facts are pleaded in the Dispute filed by them

before the Co-operative Court.

19] The perusal of the averments made in the said Dispute

goes to show that the Respondent Nos.1 and 2 have challenged the

'Results of Election' on two grounds. First ground, they have stated in

paragraph No.3 of the Dispute as follows:

"The Disputants filled in the nomination for contesting the said elections from the Open category and the Opponent no.2 also filed in the form for contesting the election from the qualified professional and experts' viz. chartered accountant or law graduate seat. However the Opponent no.1 rejected the nominations of the Disputants on the ground that the Disputant no.1 did not hold a valid graduate certificate from the U.G.C. approved University and that the Disputants did not possesses the requisite number of shares for contesting the said elections."

20] Thus, as regards the first ground, it has to be held that

there are sufficient pleadings.

21] The second ground, on which the Respondent Nos.1 and 2

have challenged the Election is the amendments made in the bye-laws

of the Society, as a result of which, their right to contest the Election

was taken away.

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22]                   In respect of this ground also there are detail averments in

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26]                   Thus, it can be seen that the Respondent Nos.1 and 2 have