Bombay High Court
Dilipkumar S/O Nandlal Talreja ... vs Rukmini Urban Co-Op Credit Soc. ... on 9 August, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
28 SECOND APPEAL NO.311 OF 2021
DILIPKUMAR S/O NANDLAL TALREJA AND ANOTHER
VERSUS
RUKMINI URBAN CO-OP CREDIT SOC. LTD THROUGH ITS
BRANCH MANAGER SATISH S/O BABURAO DEORE AND
OTHER
...
Advocate for Appellants : Mr. Palodkar Devdatt P.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 9th August, 2021.
PER COURT :-
1. Heard learned Advocate for the appellants.
2. The appellants are the original deft.Nos.3 and 4.
Present Respondent No.1 is original plaintiff, who filed
Special Civil Suit No.76/2003 for declaration and
cancellation of sale-deed. The case was resisted by the
original defendants, including present appellants. The
parties have led evidence. Learned 5 th Joint Civil Judge,
Senior Division, Jalgaon, had decreed the suit partly. The
sale-deed executed by deft.No.1 in favour of present
appellants on 31st December, 2001, has been cancelled and
declared as null and void and not binding on the plaintiff.
Deft.No.1 has been directed to pay consideration to
deft.Nos.3 and 4. The present appellants preferred RCA No.
197/2015 before the District Court, Jalgaon. The said appeal
has been heard by learned Ad-hoc District Judge-3, Jalgaon
and it has been dismissed. Hence, the present Second
Appeal.
3. Learned Advocate appearing for the appellants,
submits that both the Courts below have not considered the
operation and effect of Section 48 of the Maharashtra Co-
operative Societies Act, which makes the procedure of
registration of the mortgage and the charge mandatory. He
is relying on the decision in the case of Gajanan Eknath
Sonankar Vs. Shegaon Shri Agrasen Co-op. Credit Society
Ltd. And Anr. - 2015 (1) Mh.L.J. He also points out that
present Respondent No.1 original plaintiff has filed a dispute
before the learned Judge of the Cooperative Court for
recovery of the loan amount against all the defendants. It
has also been pointed out that both the Courts below erred
in coming to the conclusion that the sale-deed, executed by
deft.No.1 in favour of deft.Nos.3 and 4, is null and void.
Both the Courts below failed to see that when the
mandatory provision of Section 48(e) of the Maharashtra
Co-operative Societies Act, has not been followed and the
present appellants had led the evidence to prove that they
had considered all the necessary documents and then
purchased the property, then the plea that was taken by the
present appellants that they are the bonafide purchasers for
value without notice, has not been considered at all.
4. Taking into consideration the submissions as well
as the impugned judgments of both the Courts below,
substantial questions of law, as contemplated under Section
100 of Code of Civil Procedure, are arising and, therefore,
the Second Appeal stands admitted on the following
substantial questions of law, -
i. What was the nature of the document at
Exhibit-88 ?
ii. Whether the sale-deed executed between
deft.No.1 and deft.Nos.3 and 4 on 31.12.2001,
can be said to be null and void for non-
compliance of mandatory provisions of Section
48(e) of The Maharashtra Co-operative Societies
Act ?
iii. Whether the suit, in the form it was
presented before the learned Civil Judge, Senior
Division, Jalgaon, was maintainable in view of
pendency of the dispute under Section 91 of the
Maharashtra Co-operative Societies Act, before
the competent Court ?
iv. Whether both the Courts below were
justified in partly decreeing the suit and
confirming the said decree respectively ?
v. Whether deft.Nos.3 and 4 can be said to be
the bonafide purchasers for value without notice;
and whether they could have taken such kind of
defence ?
5. Issue notice to the respondents, returnable on 7 th
October, 2021.
6. Call R and P.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
