Bombay High Court

Late Shri Ramchandra Devrao Jugade And ... vs Late Krishnarao S/O Gangaram Kalbande ... on 12 August, 2025

2025:BHC-NAG:7897




                                                   1                     cra19.2021

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR

                       CIVIL REVISION APPLICATION NO.19/2021

              Late Shri Ramchandra Devrao Jugade (Dead),
              through his legal heirs:-

              (i) Deepak Ramchandra Jugade,
                    65 Yrs.
              (ii) Kiran Ramchandra Jugade,
                    62 Yrs.
              (iii) Sunil Ramchandra Jugade,
                    60 Yrs.

                    All R/o Plot No.111, Dattatraya
                    Nagar, "Sakkardara Street Scheme",
                    Sakkardara, Nagpur 440 024         .....(Original OP No.3)
                                                               ..... Applicants
                     - Versus -
              1.    Late Krishnarao S/o Gangaram Kalbande
                    (Dead), through his legal heir Devanand
                    Kalbande, R/o At and Post, Patansawangi,
                    Tah. Saoner, Distt. Nagpur - 441 113.
                                                         .....(Original Disputant)
              2.    The President/Secretary, Shivaji
                    Gruhnirman Sahakari Sanstha Ltd.,
                    Dattatraya Nagar, Sakkardara,
                    Nagpur 440 024.
                                                         .....(Original OP No.1)

              3.    Shri Bapurao Vishwanath Dhakulkar (Dead)
                    through legal heirs              .....(Original OP No.2)

              (i) Mr. Shrikant Bapurao Dhakulkar,
              ii) Mr. Dyanesh Bapurao Dhakulkar,
                                     2                     cra19.2021

iii) Mr. Prakash Bapurao Dhakulkar

     All R/o Plot No.79, Dattatraya Nagar,
     Nagpur 440 024.                     ...    Non-applicants
            -----------------
Mr. T.D. Mandlekar, Advocate for the applicants.
Mr. R.S. Mohod, Advocate for non-applicant No.1.
Mr. K.S. Totade, Advocate for non-applicant No.2.
Mr. R.S. Kurekar, Advocate for non-applicant Nos.3 (i to iii).
           ----------------
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE JUDGMENT: 10.07.2025.
DATE OF PRONOUNCING THE JUDGMENT: 12.08.2025.



JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

by consent of learned Advocates for the parties.

2. The applicants who are the legal heirs of original

opponent No.3 have filed this application challenging the order

passed by the Cooperative Court on 19.10.2020 rejecting the

application filed by the applicants under Order VII Rule 11 (a)

and (d) of the Code of Civil Procedure read with Section 92(1) of

the Maharashtra Cooperative Societies Act, 1960.

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3. The non-applicants have filed the dispute before the

Cooperative Court for declaration that the Resolution No.4

passed by the Society cancelling the allotment of suit plot No.111

is illegal, arbitrary and bad in law. The declaration is also sought

that the sale deed dated 15.11.1979 executed in favour of

opponent No.3 is not binding on them under the provisions of

Maharashtra Cooperative Societies Act.

4. The brief facts of the dispute filed by the original

disputant i.e. non-applicant No.1 herein are as under:-

Opponent No.3 was the member of society. Plot

No.111 was allotted to the disputant on 13.5.1967 and the sale

deed was executed in his favour. However, on 2.9.1967, State

Government vide its notification has given control to Nagpur

Improvement Trust over the entire area in which Plot No.111 was

situated. Therefore, on 16.7.1973 opponent No.1 society handed

over the possession of entire land to N.I.T. The notices were sent

to all the members for purchasing plots of Kh. No.20, Hiwari

Layout, Nagpur but disputant failed to encash this opportunity.

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On 15.11.1979 opponent No.1 society executed the sale deed of

disputed plot i.e. plot No.111 in favour of opponent No.3 and by

passing the Resolution, opponent No.1 society, cancelled the plots

allotted to members who have failed to make payment of

Rs.1,000/- and no due towards the society. On 27.5.1985, N.I.T.

made lease of plot No.111 in favour of opponent No.1-society.

On 17.9.1985 opponent No.1- society made registered

relinquishment deed in favour of opponent No.3. On 5.12.1986,

N.I.T. made a mutation entry in the name of opponent No.3.

5. The opponent in said dispute i.e. the applicants in

this application have filed the application stating that said dispute

is not at all maintainable, there is no any cause of action to file the

present suit, it is barred by limitation as prescribed under Section

92(1) of the Maharashtra Cooperative Societies Act, 1960 and

also barred by Limitation Act.

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6. According to the applicants, disputant has given the

bid offer to purchase plot No.42 and has given the undertaking

that he has not received any plot from society. Bid offer of the

disputant was accepted but he failed to make payment within

stipulated time and, therefore, his claim has not survived. These

facts are suppressed by the disputant before the Court. The

dispute has been filed on the erroneous assumptions made by the

disputant. The disputant is challenging the Resolution passed on

27.7.1980 which is barred by law of limitation. Hence prayed to

reject the plaint under Order VII Rule 11 of the C.P.C.

7. The non-applicant resisted the application filed by the

applicants stating that the issue on the point of limitation is

already framed. Cause of action is a bundle of facts and, therefore,

it cannot be adjudicated upon without examining the parties.

Hence prayed to reject the application.

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8. Heard the learned Advocates for the parties and

perused the record.

9. It is the settled law that while deciding the application

under Order VII Rule 11 of the C.P.C., only averments stated in

the plaint can be looked into. The defence of the non-applicant

cannot be considered at the stage of considering the application

under Order VII Rule 11 of the C.P.C. On perusal of plaint, it

appears that contention regarding bid was accepted for purchase

of plot No.42 and an undertaking was given by the disputant that

he has not purchased any plot in said society is not mentioned in

plaint. Said defence cannot be considered at the stage of deciding

application under Order VII Rule 11 of the C.P.C.

10. It is the case of disputant that he has purchased a

vacant plot No.111 for construction of residential house from

opponent No.1 society on 13.5.1967, sale deed was also executed

and the possession was handed over to the disputant. The 7 cra19.2021

disputant was waiting for the letter of lease deed from N.I.T. for

confirming the regularization of the said plot and was also waiting

for demand of development cost for the said plot. In the month

of October 2009 when the power of attorney holder of the

disputant visited the plot, the power of attorney holder found that

construction was going on on said plot by opponent No.3.

Thereafter the power of attorney holder of the disputant has

visited the office of society but the office bearers denied to redress

his grievance and to restore the possession. Thereafter disputant

has filed the police complaint at Sakkardara Police Station on

18.12.2009. At that time, the disputant came to know that the

allotment of said plot was cancelled behind his back by resolution

dated 27.7.1980 and transferred the plot in favour of opponent

No.3. On perusal of the plaint it appears that in para 7 it is

mentioned that being a member of the opponent society an

enquiry under Section 83 of the Maharashtra Cooperative

Societies Act was made and the Deputy Director of Cooperative

Societies, Nagpur City II was directed to bring truth on record.

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Accordingly, said authority has conducted an enquiry and

opponent No.1 called his official record and documents. The

authority after concluding the enquiry held and communicated

vide its official letter dated 28.9.2010 to the disputant and

opponent society that opponent No.1 has acted illegally and

contrary to the provisions of law and bye-laws while cancelling

the suit plot and transferring and executing the subsequent sale

deed dated 15.11.1979 in favour of opponent No.3. This

communication gives fresh cause of action to disputant. The

dispute is filed on 04.02.2011 which is within 6 years.

11. The applicants have placed reliance on the judgment

of this Court in case of Southern Nagpur Co-operative Housing

Society Ltd. V/s. Purushottam S/o Raghosao Shegaonkar and

others reported in 2006 SCC OnLine Bom 773 in support of

their argument that the limitation to file dispute before the

Co-operative Court is 6 years, the Court is empowered to admit 9 cra19.2021

the dispute after the expiry of limitation period if the appellants

satisfy the Court that they have sufficient cause.

12. Here is the case where the cause of action to file

dispute arose on 18.12.2009 and the dispute is filed on

04.02.2011 which is within limitation.

13. The plaintiffs have also relied on the judgment in case

of Balwant S/o Sitaram Peshne since deceased through his LRs.

Shalini Balwant Peshne and others V/s. Nagpur Co-operative

Housing Society Ltd., Gandhibag reported in 2010 SCC OnLine

Bom 636. It is about computation of period of limitation from

the date of issuance of notice. The relevant observations of para

32 of above judgment reads as follows:-

"32 .....If issuance of notice, or receipt of reply, were allowed to be set up as starting point for limitation, or point of time when the cause of action accrues, the Limitation Act itself would be rendered superfluous, since in that case, a party could merrily postpone giving a notice invoking its rights and then claim that the limitation would start from the date it served such a notice. ......"

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In case in hand, the dispute is within limitation

without counting the period of issuance of notice.

14. The non-applicants have relied on the judgment in

case of Harbanslal Sahnia and another V/s. Indian Oil Corpn.

Ltd. and others reported in (2003) 2 SCC 107 and Whirlpool

Corporation V/s. Registrar of Trade Marks, Mumbai and others

reported in (1998) 8 SCC wherein observations are made about

revisional powers of Co-operative Court.

15. In view of above-said discussion to prove these facts

it requires evidence and as the issue is already framed about

limitation, the trial Court has rightly rejected the application.