Bombay High Court
Shri. Milind S/O Pralhad Meshram vs Rupam Magasvargiya Gruha Nirman ... on 11 January, 2018
Bench: A.S. Chandurkar
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Revision Application No.75 of 2015
AND
Civil Revision Application No.85 of 2015
A. Civil Revision Application No. 75 of 2015 :
Milind son of Pralhad Meshram,
aged about 51 years,
occupation - service,
resident of Motha Indora,
near Buddha Vihar, Nara Road,
Jaripatka, Nagpur. ..... Applicant
Org. Deft. No.2
Versus
1. Rupam Magasvargiya Gruha Nirman
Co-operative Society Maryadit,
Nagpur,
registered within the provisions of
Co-operative Societies Act, 1960,
bearing Registration No. NGP/HSG/1243,
through its Secretary - Shri
Umrao son of Dharamdas Dupare,
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aged about 66 years,
occupation - Retired Govt.
Servant,
resident of Plot No. 122,
Laghuvetan Colony,
Kampatee Road, Nagpur.
....Org. Plaintiff.
2. Shri Omprakash son of Gokuldas
Bajaj,
aged about 52 years,
occupation - Business,
resident of Plot No. 353,
Jaripatka, Nagpur.
....Org. Defendant no.1.
3. Shri Chandrakant son of Narayanrao
Sonkamble,
aged about 47 years,
occupation - Business,
resident of Mate Chowk,
Gopal Nagar, Sanghmitra,
in front of Buddha Vihar,
Nagpur.
....Org. Defendant no.3 ..... Non-applicants
*****
Mr. S. P. Kshirsagar, Adv., for the Applicant.
None for the non-applicants.
*****
B. Civil Revision Application No. 85 of 2015 :
Milind son of Pralhad Meshram,
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aged about 51 years,
occupation - service,
resident of Motha Indora,
near Buddha Vihar, Nara Road,
Jaripatka, Nagpur. ..... Applicant
Org. Deft. No.2
Versus
1. Rupam Magasvargiya Gruha Nirman
Co-operative Society Maryadit,
Nagpur,
registered within the provisions of
Co-operative Societies Act, 1960,
bearing Registration No. NGP/HSG/1243,
through its Secretary - Shri
Umrao son of Dharamdas Dupare,
aged about 66 years,
occupation - Retired Govt.
Servant,
resident of Plot No. 122,
Laghuvetan Colony,
Kampatee Road, Nagpur.
....Org. Plaintiff.
2. Shri Jaiprakash son of Gokuldas
Bajaj,
aged about 46 years,
occupation - Business,
resident of Plot No. 353,
Jaripatka, Nagpur.
....Org. Defendant no.1.
3. Shri Chandrakant son of Narayanrao
Sonkamble,
aged about 47 years,
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occupation - Business,
resident of Mate Chowk,
Gopal Nagar, Sanghmitra,
in front of Buddha Vihar,
Nagpur.
....Org. Defendant no.3 ..... Non-applicants
*****
Mr. S. P. Kshirsagar, Adv., for the Applicant.
None for the non-applicants.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 11th January, 2018
ORAL JUDGMENT:
01. Since these Civil Revision Applications raise identical
challenges, they are being decided by this common judgment.
02. In both the Civil Revision Applications, the applicant -
original defendant no.2 is aggrieved by the orders passed by the trial
Court on the applications preferred by him under provisions of Order-
VII, Rule 11 (d) of the Code of Civil Procedure, 1908 [for short, "the
Code"] dismissing those applications.
For sake of convenience, facts in Civil Revision Application
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No. 75 of 2015 are being referred to.
03. It is the case of non-applicant no. 1 [original plaintiff] that
the non-applicant no.1 is a Co-operative Housing Society registered
under the provisions of the Maharashtra Co-operative Societies Act,
1960 [for short, "the said Act"]. The One Umrao Dupare is stated to
have been elected as its Secretary for the period from 9th December,
2007 till the year 2012. It is pleaded that the applicant herein along
with his associates intended to cause wrongful loss to the Society.
Hence, by misrepresenting himself as the Secretary of the Society, he
executed various agreements and sale-deeds of the properties
belonging to the Society. A Dispute before the Co-operative Court had
been filed by the Society, in which an order of injunction had been
passed against the present applicant. Despite that, the applicant
executed sale-deed dated 17th August, 2010 in favour of the non-
applicant no.2 herein. Hence, the non-applicant no.1 filed a suit for
declaration that the said sale-deed was void and that the applicant
[defendant no.2] had no right to execute the same in favour of the
non-applicant no.2 [defendant no.1].
04. In that suit, the defendant no.2 filed an application under
provisions of Order-VII, Rule 11 (d) of the Code seeking rejection of the
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plaint on the count that the jurisdiction of the Civil Court was barred
and that the relief as sought was required to be sought from the Co-
operative Court under Section 91 of the said Act. It was stated that
the election of defendant no.2 had been challenged before the Co-
operative Court in a separate Dispute which had been dismissed. This
application was opposed by the plaintiff and by the impugned order, it
was held that the suit as filed was maintainable before the Civil Court
as the reliefs sought could not be obtained under Section 91 of the said
Act. Being aggrieved, the present Civil Revision Applications have
been filed.
05. Shri S. P. Kshirsagar, learned counsel for the applicant,
submitted that Shri Umrao Dupare had filed Dispute No. 764 of 2007
against the Society as well as the present applicant. In that Dispute, a
prayer was made that the present applicant and other office-bearers
had not been validly elected and that their election was null and void.
The office-bearers had no right to deal with the property of the Society
and hence perpetual injunction in that regard was also sought.
Though, initially, such injunction was granted, the Dispute came to be
dismissed. Thereafter, the applicant had executed a sale-deed in
favour of the non-applicant no.2 in his capacity as Secretary of the
Society. Considering the provisions of Section 91 and Section 163 of
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the said Act, it was only the Co-operative Court that could grant the
reliefs as sought in the suit and not the Civil Court. Having filed a
Dispute before the Co-operative Court and having failed to obtain any
relief therein, it was not open for the plaintiff to seek a similar relief
before the Civil Court. Placing reliance on the judgment of the
Honourable Supreme Court in Margret Almeida & others Vs. (The)
Bombay Catholic Co-operative Housing Society Ltd. & others
[[2012 (5) Mh.L.J. 4], it was submitted that the requirements of Section
91 of the said Act being duly satisfied, the trial Court committed a
jurisdictional error in passing the impugned orders and, thus,
continuing to entertain the Civil Suits.
06. There was no appearance on behalf of the non-applicants.
With the assistance of learned counsel for the applicant, I have gone
through the documents placed on record and I have given due
consideration to his submissions.
07. The orders impugned being one rejecting the applications
filed under provisions of Order-VII, Rule 11 (d) of the Code, it is only
the plaint averments that are material for considering the grounds
raised in the applications. Perusal of the plaints indicates that
according to the plaintiff, the plaintiff through its Secretary was
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instrumental in the acquisition of lands by the Co-operative Society.
The said Shri Umrao Dupare was the Secretary of the Society since the
year 2007. However, the applicant herein by posing himself as the
Secretary entered into various agreements in respect of the properties
of the Society. Though an order of injunction was passed by the Co-
operative Court in the Dispute filed on behalf of the Society, the
applicant in the year 2010 executed sale-deeds of the properties of the
Society in the capacity of its Secretary. Hence, a declaration that
those sale-deeds were null and void was sought along with a further
declaration that the defendant no.2 had no right to the said property.
From the aforesaid, it can be seen that the plaintiff has
sought a declaration that the sale-deeds executed in favour of
defendant no.1 by defendant no.2 be declared as null and void.
08. In Alok Agarwal & others Vs. Punam Co-operative
Housing Society Ltd. & others [ 2013 (1) Mh.L.J. 104], the Division
Bench of this Court considered the question as to whether the Co-
operative Court is vested with the power of ordering cancellation of a
written instrument under Section 31 of the Specific Relief Act, 1963.
Its observations in paragraph 16 are relevant and the same read as
under:-
"16. The real bone of contention, however, is
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whether the reliefs which have been sought before this
Court are of a nature that would fall within the
jurisdiction of the Co-operative Court under sub section
(1) of Section 91. The co-operative society, which is the
Plaintiff before this Court, has among the reliefs sought
claimed a declaration to the effect that the agreement
dated 30 May 2007 under which the Appellant claims
title is null and void and unenforceable as against the
society. Declaratory relief of this nature cannot be
granted by the Co-operative Court. Section 31 of the
Specific Relief Act 1963 provides that any person
against whom a written instrument is void or voidable,
and who has reasonable apprehension that if such
instrument is left outstanding may cause him serious
injury, may sue to have it adjudged void or voidable;
and the Court may, in its discretion, so adjudge it and
order it to be delivered up and cancelled. The power
which is conferred upon the Civil Court under Section
31(1) of ordering cancellation of a written instrument is
evidently not vested in the Co-operative Court
constituted under the Maharashtra Co-operative
Societies Act 1960. It is well settled that the jurisdiction
which is conferred on a Civil Court under Section 9 of
the Code of Civil Procedure 1908 to try all suits of civil
nature can be abrogated only by an express provision of
the statute or where it is impliedly barred. The
provisions of Section 91 of the Maharashtra Co-
operative Societies Act 1960 do not either expressly or
by necessary implication confer jurisdiction on the Co-
operative Court to grant declaratory relief especially of
the nature referable as in the present case to Section 31
of the Specific Relief Act 1963. ....."
Thus, from the aforesaid, it is clear that under Section 91 of
the said Act, there is no jurisdiction with the Co-operative Court to
grant declaratory relief in the nature that is referable to Section 31 of
the Specific Relief Act, 1963.
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09. Though it is true that the Co-operative Society had
approached the Co-operative Court by filing a Dispute in the year 2007
for a declaration that the office-bearers including the applicant herein
had no legal authority to act as office-bearers that cannot be a reason
for rejecting a plaint, especially when the plaintiff has sought
declaratory relief under Section 31 of the Specific Relief Act, 1963. The
effect of dismissal of that dispute is a matter to be considered by the
Civil Court on its own merits; but the same cannot be the ground for
holding that the plaint is liable to be rejected under provisions of
Order-VII, Rule 11 (d) of the Code, as urged by the applicant herein.
10. The decision in Margret Almeida & others [supra] on which
reliance was placed by the learned counsel for the applicant does not
support his contentions. Merely because one of the parties answers
the requirements prescribed by Section 91 (1) of the said Act, the
jurisdiction of the Civil Court is not ousted. The nature of relief sought
in the suit is also a material factor and if such relief cannot be granted
by the Co-operative Court, then even if one of the parties answers the
aforesaid description as contemplated by Section 91 (1) of the said
Act, the suit would be maintainable.
11. Hence, in view of aforesaid discussion, I do not find that Civil
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Court committed any jurisdictional error while passing the impugned
order. The Civil Revision Applications are accordingly dismissed with
no order as to costs.
Judge
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