Karnataka High Court

Muniyamma vs M/S. Karnataka Electricity Board ... on 31 October, 2023

Bench: K.Natarajan

                             1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 31ST DAY OF OCTOBER, 2023

                        BEFORE

        THE HON'BLE MR. JUSTICE K. NATARAJAN

          REGULAR FIRST APPEAL NO.312 OF 2021

BETWEEN:

   SMT. MUNIYAMMA
   W/O SRI KAVERAPPA,
   SINCE DECEASED BY LRS,

1 . Y. G. RAMAKRISHNA
    AGED ABOUT 61 YEARS,
    S/O LATE KAVERAPPA,
    NO.209, 7TH CROSS,
    A.K.COLONY, NEAR GANESH TEMPLE,
    KAVERAPPA BUILDING, YAMALUR,
    BENGALURU - 560 037.

2 . MUNIRATHNA
    AGED ABOUT 60 YEARS,
    W/O THYAGARAJ,
    R/AT NO.5, 19TH CROSS,
    KAVERAPPA BUILDING,
    RAMESH NAGAR,
    BENGALURU - 560 037.

3 . GOWRAMMA
    AGED ABOUT 58 YEARS,
    W/O Y.GOPAL,
    R/AT NO.209, 7TH CROSS,
    A.K.COLONY, NEAR GANESH TEMPLE,
    KAVERAPPA BUILDING,
    YAMALUR,
    BENGALURU - 560 037.
                              2


4 . K. RAMAMURTHY
    AGED ABOUT 55 YEARS,
    S/O LATE KAVERAPPA,
    R/AT NO.5, 19TH CROSS,
    KAVERAPPA BUILDING,
    RAMESH NAGAR,
    BENGALURU - 560 037.
                                           ... APPELLANTS
(BY SRI. S. KALYAN BASAVARAJ, AND
    SRI. LOKESH RAO B.S., ADVOCATES)


AND:


1.     M/S. KARNATAKA ELECTRICITY BOARD
       EMPLOYEES COOPERATIVE SOC. LTD.,
       HAVING ITS REGISTERED OFFICE AT
       ANANDA RAO CIRCLE, RACE COURSE ROAD,
       BENGALURU - 560 009,
       REPRESENTED BY ITS SECRETARY.

2.     SRI. K.P.CHAMPAKADHAMASWAMY
       AGED ABOUT 63 YEARS,
       S/O LATE PUTTASWAMY,
       R/AT NO.161/64, 8TH MAIN,
       MALLESHWARAM,
       BENGALURU - 560 003.

3.     M/S. GOLDEN GATE PROJECTS
       A PARTNERSHIP FIRM HAVING ITS REGISTERED,
       OFFICE AT NO.96, 1ST FLOOR, 4TH B BLOCK,
       KORAMANGALA EXTENSION,
       BENGALURU - 560 034,
       REPRESENTED BY ITS PARTNER.

4.     M/S KEYA HOOMES PVT LTD.,
       A PRIVATE LIMITED COMPANY INCORPORATED,
       UNDER THE PROVISIONS OF THE COMPANY'S ACT,
       HAVING ITS OFFICE AT NO.17,
       REGENT COURT, 17, 80 FEET ROAD,
                                3


     NEW FRIENDS COLONY,
     KORAMANGALA,
     BENGALURU - 560 034.
                                         ... RESPONDENTS
(BY SRI. K.S. KALLESHAPPA, ADVOCATE FOR R1;
     SRI. MOHAMMAD NASIRUDDIN, AND
     SRI. SIDDHARTH S BIJOOR, ADVOCATES FOR R3;
     VIDE ORDER DATED 13.09.2021, SERVICE OF NOTICE TO
     R2 IS HELD SUFFICIENT;
     SRI. VENKATESH R BHAGAT, ADVOCATE FOR R4)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 R/W ORDER XLI RULE 1 OF THE CPC, AGAINST THE ORDER
DATED 17.03.2021 PASSED ON I.A.NO.3 AND PRELIMINARY
ISSUE NO.7 IN O.S.NO.1537/2017 ON THE FILE OF THE I
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
ALLOWING THE I.A.NO.3 FILED UNDER ORDER 7 RULE 11 (a)
AND (d) OF CPC FOR REJECTION OF PLAINT.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.10.2023, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                           JUDGMENT

This appeal is filed by the appellants-plaintiffs under

Section 96 of CPC for setting aside the order dated

17.03.2021 on I.A No.3 filed under Order VII Rule 11 (a)

and (d) of CPC, in O.S.No.1537/2017 passed by the I

Additional City Civil and Sessions Judge, Bengaluru,

whereby the trial Court has allowed the I.A. and rejected

the plaint.

2. Heard the arguments of learned counsel for the

appellants and learned counsel for respondents.

3. The appellants are the plaintiffs and respondent

Nos.1 to 3 are defendant Nos.1 to 3 before the trial Court.

The rank of the parties is retained for the sake of

convenience. Respondent No.4 - developer who is

impleaded would join with respondent No.3.

4. The case of the plaintiffs before the trial Court is

that the plaintiffs filed a suit for permanent injunction

restraining defendants from interfering with suit schedule

property of the plaintiffs and restraining the defendants

from alienating northern half of land bearing Sy. No.30/2,

Kasavanahalli village, Bangalore East Taluk, formerly

Bangalore South Taluk, measuring 3 acres 25 guntas,

bounded on East by Basappa and other's land, West by

Narasamma and Chenni Reddy's and Gundappa's land,

North by remaining portion of the same survey number

and South by Chikkabalappa's land (hereinafter referred to

as schedule 'A' property). This schedule 'A' property is

purchased by plaintiffs' mother deceased Muniyamma from

one B.R. Muga Reddy s/o. late M. Rama Reddy under sale

deed 14.09.1964 registered in the office of the Sub-

Registrar, Bangalore city, and she was the absolute owner

of the said property.

5. The further case of the plaintiffs is that the said

Muniyamma also purchased southern half of land bearing

Sy. No.30/2, Kasavanahalli village, Bangalore East Taluk,

formerly Bangalore South Taluk, measuring 3 acres 25

guntas, bounded on East by Basappa's land, West by

Narasamma's land and North by Thoti Inamthi land and

South by remaining portion of the same survey number

(hereinafter referred to as suit schedule 'B' property). the

suit schedule 'B' property was purchased from one

Sunchappa, s/o. late Puttaiah, on 24.05.1971 of the Sub-

Registrar, Bangalore city, and she was the absolute owner

of the said property.

6. The defendant No.1 is M/s. Karnataka Electricity

Board Employees Cooperative Society Limited (hereinafter

referred to as 'Society'), represented by defendant No.2,

who is the Secretary of defendant No.1, entered into a sale

agreement dated 24.01.1992 with the plaintiffs with the

object of forming a residential layout for its members in

the schedule properties for total sale consideration of

Rs.9,25,000/-. The time stipulated for completion of sale

transaction was 9 months. Pursuant to the said

agreement, the plaintiff applied for conversion of land,

which was obtained. Due to certain technicalities, the sale

could not be executed within 9 months. As such, two

more agreements in respect of schedule A and B properties

were registered on 29.10.1992 and another agreement on

dated 28.10.1992 in the office of Sub-Registrar regarding

A and B schedule properties, on continuation of earlier

agreement dated 24.01.1992.

7. The further case of the plaintiffs is that General

Power of Attorney has been executed on 29.10.1992 in

respect of schedule 'A' property, in favour of defendant

No.2 as representative of defendant No.1. Another General

Power of Attorney dated 28.10.1992 was executed in

respect of schedule 'B' property. As per sale agreement

dated 29.10.1992, the balance sale consideration payable

was Rs.1,19,000/- to be paid by defendant No.1 to the

plaintiffs after all the legal formalities completed.

Similarly, under the agreement dated 28.10.1992, the

balance consideration payable was Rs.25,000/- to be paid

by defendant No.1 to the plaintiffs after all the legal

formalities completed. It is further alleged that the

plaintiffs requested defendant Nos.1 and 2 for completing

the legal formalities but the defendants kept on

postponing the issue for one or the other reasons.

Defendant No.3 tried to interfere with the plaintiffs'

possession on 05.04.2016. Being suspicious, the plaintiffs

enquired into the matter and applied for E.C. in respect of

the schedule properties and it was found that defendant

No.2 being the GPA holder of defendant No.1, sold the

schedule properties to defendant No.3 vide sale deed

dated 28.05.2002, by impersonating the deceased plaintiff

before the Sub-Registrar office. The photograph affixed on

the document is altogether different from that of the

photograph of mother of the plaintiffs. Therefore, the

plaintiffs filed a private complaint under Section 200 of

Cr.P.C. read with Sections 420, 416 and 506 of IPC and

Section 3(x) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (for short

'SC/ST (POA) Act') and the investigation is pending.

8. It is further alleged that the plaintiffs' mother

approached defendant Nos.1 and 2 once again and

questioned about their misconduct, but the defendants

neglected and ill treated her and hence, the GPAs dated

28.10.1992 and 29.10.1992 have been revoked on

07.02.2017 and the same was informed to the defendants.

Defendant Nos.1 and 2 do not have any right and title over

the properties and the plaintiff's mother was not the

signatory to the sale deed executed in favour of defendant

No.3. Defendant Nos.1 and 2 colluded with defendant

No.3 and played fraud on the plaintiffs. On 24.02.2017,

the defendants again tried to interfere with the schedule

properties. Hence, the plaintiffs filed the suit seeking

cancellation of agreements of sale dated 24.01.1992,

29.10.1992 and 28.10.1992 and to declare that the sale

deed dated 28.05.2002 executed by defendant No.2 in

favour of defendant No.3 is not binding on the plaintiffs

and also to grant permanent injunction against the

defendants not to interfere with the peaceful possession

and enjoyment of the plaintiffs schedule properties.

9. In pursuance to summons, defendant No.3

appeared through its counsel and filed written statement.

It is contended that the suit is not maintainable as no

notice under Section 125 of Karnataka Co-operative

Societies Act, 1959 (hereinafter referred to as 'Societies

Act') was issued to defendant No.1 prior to filing of the suit

which is a statutory notice to be issued and, therefore, the

suit is to be dismissed in limine. The relief sought by the

plaintiffs is for canceling agreements of sale. Admittedly,

defendant No.1 is Society and without a notice under

Section 125 of the Societies Act, the suit cannot be filed.

It is contended that the plaintiff already sold the property

by power vested with GPA given to the Society. She has

received the entire sale consideration of the schedule

properties and denied the other contentions made in the

plaint as false. However, the allegation that of the

plaintiffs that the plaintiff was impersonated by affixing

photograph of some other lady while execution of the sale

deed, were all denied by the defendant. It is binding on

the agreement of sale and GPA executed by plaintiff.

Defendant Nos.1 and 2 already acted upon the GPA and

the action of the GPA holder is binding as the plaintiff.

Therefore, defendant No.3 is having right, title and interest

over the schedule properties and possession has remained

with the defendant. Therefore, the contention of the

plaintiff that she is in possession of the schedule

properties, is not correct. It is further contended that

there was reconstitution of partnership firm of M/s. Golden

Gate Projects in so far as S. Martin and his wife Mrs. M.

Leema Rose have left. The declaration has also been

executed by Muniyamma, her husband and her children

and they have accepted execution of all documents and

khatha also stands in the name of defendant No.3.

Defendant No.3 not only obtained conversion order, but

got converted the land from agricultural to non agricultural

land. The plaintiff-Muniyamma also executed gift deed in

favour of her son Ramamurthy. In the light of the sale

deed dated 28.05.2002 and the decree passed in O.S.

No.25398/2008, the said gift deed, was null and void as

Muniyamma did not retain any interest or title over the

property after execution of GPA. Hence, prayed for

dismissing the suit.

10. Defendant No.1-Society also appeared through

its counsel and filed written statement stating that the

plaint is not maintainable either in law or on facts and the

same may be dismissed in limine. The suit is bad and

prayed for dismissal of the suit for non joinder of

necessary parties. The suit is filed only intention to harass

the defendant No.1. Defendant No.1 is the Society

registered under the Co-operative Societies Act.

Defendant No.1 represented through its Secretary-

defendant No.2 who has collected crores of rupees from

the members and the said amount is given to landlords

M/s. Vinayaka Enterprises. Defendant No.1 further

contended that defendant No.2 while serving as Honorary

Secretary and Executive Director from 1991-92 to 2007-

08, the other Board of Directorates were managing the

Society. The Society was intended to purchase the

property declaring that the property has been purchased.

Defendant No.2 was elected as board of Director of the

Society. Defendant No.2 and M/s. Vinayaka Enterprises

entered into Memorandum of Understanding (MOU) on

27.11.1993 with defendant No.3-developers and the

Memorandum of Understanding was represented by

Honorary Secretary of defendant No.1. M/s.Vinayaka

Enterprises also represented through Memorandum of

Understanding. Both have first party of the one part in the

said Memorandum of Understanding. As per the MOU and

agreement dated 09.09.1991, the party of the first part

with the help of M/s. Vinayaka Enterprises has made all

arrangements to procure the land and consideration has

been paid to the owners. The aim of the Society is to form

the layout and allot to its members. Due to financial

technicalities, the sale deed was executed in favour of

defendant No.3. It is further contended that defendant

No.2 stated defendant No.1 that it fixed loan was borrowed

from BD and BRDCC Bank Ltd. for the purpose of

acquisition of schedule properties.

11. It is further alleged that as per the annual

general body meeting dated 10.10.1998, it was resolved to

sell the schedule properties and as per the board meeting

dated 16.08.2001, the resolution dated 10.10.1998 was

reaffirmed. It is further alleged that as per board

resolution dated 18.02.202, defendant No.2 has not

obtained permission from concerned authority and sold the

schedule properties to the defendant No.3 illegally. The

defendant No.2 has obtained loan for the purpose of

clearing the loan from BD and BRDC Bank, but defendant

No.2 has not cleared the said loan. Hence, the sale deed

executed by defendant No.1 in favour of defendant No.3 is

void. There is no provision in by-laws for alienating the

property to outsiders. Defendant Nos.2 and 3 have acted

as ultra vires and in excess of their powers. As such, the

sale of the schedule properties by the defendant No.2 in

favour of defendant No.3 is against the law. The property

was sold as per the guideline value though the market rate

was more than Rs.5 crores. The defendant No.2 has not

utilized the sale proceeds to the Society. Now, defendant

No.1-Society is with new set of office bearers. Permission

for selling the property or authorization given by AGM was

misused and fraud committed by members cheating the

Society and for irregularities committed by defendant

No.2. A complaint has been filed by defendant No.1 in the

High Ground Police station against defendant No.2, which

has been transferred to COD and the COD filed charge

sheet before the Magistrate. It is also contended that

defendant No.2 has violated the provisions of the Act and

executed the sale deed in favour of defendant No.3, which

is illegal. Defendant No.1 denied all the averments made in

the plaint and prayed for dismissing the suit.

12. Based upon the pleadings, the trial Court

framed ten issues which are as under:

"1. Whether the plaintiff proves that she is the absolute owner and in possession of the suit properties through the registered sale deeds dated 14.9.1964 and 24.5.1971?

2. Whether the plaintiff proves that the registered sale agreement dated 24.1.1992, 29.10.1992 and 28.10.1992 are liable to be cancelled?

3. Whether the plaintiff proves that the registered sale deed dated 28.5.2002

executed by defendant no.2 in favour of the defendant no.3 is not binding on her?

4. Whether the plaintiff proves that alleged interference from the defendants?

5. Whether the defendants prove that the suit is bad for nonjoinder of necessary parties?

6. Whether the defendants prove that the suit is barred by limitation?

7. Whether the defendants prove that the suit is not maintainable, since the plaintiff has not complied the provisions of Karnataka Cooperative Societies Act?

8. Whether the defendant no.3 proves that he is a bonafide purchaser?

9. Whether the plaintiff is entitled to the relief of declaration and Permanent Injunction

10. What Order or Decree?"

13. Defendant No.3 also filed an application under

Order VII Rule 11(a) and (d) of CPC to reject the plaint by

taking the contention that there is no cause of action and

the suit is barred by limitation. It is further contended that

there is no statutory notice under Section 125 of the

Societies Act issued as against defendant No.1 prior to

filing of the suit. Therefore, without compliance of notice,

the suit is barred by limitation and bad in law. It is further

contended that the plaintiffs' suit for the execution of sale

deed dated 28.05.2002, the relief claimed is barred under

Article 58 of Limitation Act and the suit is not maintainable

without seeking the relief. Hence, prayed for rejecting the

plaint.

14. The plaintiffs filed statement of objections

contending that the application is not maintainable. The

cause of action arose as stated in para 16 of the plaint.

Order VII Rule 11(a) of CPC is not applicable for the plaint.

The pleadings clearly disclose that there is fraud and

therefore, the limitation is not applicable. The notice under

Section 125 of the Societies Act is not applicable to the

present case. It is contended that GPA is admitted in the

sale deed dated 28.05.2002. Looking to all the angles, the

plaint cannot be rejected.

15. After hearing the arguments, the trial Court

framed two points as under:

Point No.1 : Whether the plaint is liable to be rejected under Order VII Rule 11(a) and

(d) as prayed by defendant No.3 in I.A.No.3 ?

Preliminary Issue (No.7) : Whether the defendants prove that the suit is not maintainable since the plaintiff has not complied the provisions of Karnataka Cooperative Societies Act ?

16. Preliminary issue No.7 was treated as

paramount issue and finally, allowed the application and

rejected the plaint. Being aggrieved by the same, the

plaintiffs are before this court.

17. Heard the arguments of learned counsel for

respondent No.1. Respondent No.2 served and

unrepresented. Respondent No.3 appeared through the

learned advocate and respondent No.4 also appeared

through learned advocate and Heard then.

18. Learned counsel for the appellant has contended

mainly on two grounds in respect of limitation stating that

there is no limitation applicable and there is no need of

issuing notice under Section 125 of the Societies Act, the

trial Court committed error in rejecting the plaint. The suit

is filed for declaring that the sale deed is not binding as

there was fraud committed by defendant No.2 by

impersonating the plaintiff and executed the sale deed.

Therefore, the Limitation Act is not applicable to the case

on hand. Therefore, rejecting the plaint on the ground of

suit is barred by limitation, cannot be accepted. The

learned counsel further contended that the notice under

Section 125 of the Societies Act is not required as there

was transaction between defendant Nos.1 and 2 and

Defendant No.3. Defendant No.1 did not raise any

objection in written statement regarding non issuing the

notice, where as defendant No.3 raised the question of

issuing notice to defendant No.1. Therefore, it cannot be

accepted. The execution of sale deed by defendant No.2

to defendant No.3 will not attract Section 125 of the

Societies Act, their act not touches the business and

management of the Society. Therefore, the order of the

trial Court is liable to be set aside.

19. Per contra, learned counsel for respondent

No.1-defendant No.1 has contended that the property was

purchased by defendant No.1-Society represented by

defendant No.2, but subsequently, defendant No.2, by

acting under the GPA, sold the property to defendant

No.3. The object of the Society was to purchase the land,

form the sites and sell it to its members, therefore, the

notice is required. Further, it is contended that defendant

No.1 has taken the contention in the 1st paragraph of

written statement itself that the suit is not maintainable

either in law or on facts. Hence, prayed for dismissing the

appeal.

20. Per contra, learned counsel for defendant No.3

has seriously objected the appeal and contended that the

defendant No.2 being the Secretary representing

defendant No.1-Society, has purchased the property, on

behalf of defendant No.1, from the appellants for valuable

consideration. Defendant No.1 given GPA given in the

name of defendant No.2 and subsequently, the GPA was

acted upon. Even if the appellants die, the GPA will not

die. As the GPA coupled with interest, defendant No.3 paid

the entire sale consideration. Therefore, once defendant

No.2 purchased the property on behalf of defendant No.1-

Society, it is for the purpose of forming the layout and

selling to its members which amounts to business of the

Society and after purchasing the property. Due to financial

crisis in the defendant No.1-Society, the AGM (Annual

General Body Meeting), the Society was authorized and

permitted to execute the sale deed in favour of defendant

No.3 and in turn, the defendant No.3 purchased the

property. Therefore, for the purpose of filing the suit,

statutory notice under Section 125 of the Societies Act is

mandatory and without notice, the suit is not maintainable.

Hence, supported the order of the trial Court.

21. Learned counsel for respondent No.3-defendant

No.3 also contended that there is no fraud played by

defendant No.2. Once GPA is executed by the appellant,

therefore need not required to come to the Sub-Registrar

office. The defendant No.2, as GPA holder for the

defendant No.1-Society and representing the defendant

No.1-Society, sold the property and he has affixed his

signature on behalf of plaintiff and therefore, there is no

impersonation or fraud committed by the 2nd defendant.

Therefore, the limitation Act for filling the suit or arises. It

is further contended that the plaintiff also filed complaint

to the Director of Civil Rights, where they have given

report stating that there is no fraud committed by the

defendant No.2. The learned counsel further contended

that GPA coupled with interest and it was acted upon by

the 2nd defendant by selling the property to the 3rd

defendant in the year 1999 itself. The sale deed was

executed in the year 2002, but the suit was filed in the

year 2007. The suit was utterly barred by law. Hence, he

has contended that the trial Court has rightly rejected the

plaint and prayed for dismissing the appeal.

22. Having heard the arguments and on perusal of

the records, the points that arise for my consideration are:

      "1)   Whether       the   statutory   notice   under
            Section 125 of the Societies Act is
            mandatory for maintaining the suit as
            against defendant No.1-Society?


      2)    Whether the suit is barred by law of
            limitation?


      3)    Whether the order of the trial Court calls
            for interference?"

23. Point No.1 - The learned counsel for the

appellants has strenuously contended that the notice under

Section 125 of the Societies Act is not necessary as the

sale deed between the 2nd and 3rd defendant is not

touching the affairs or management of the Society,

therefore, the suit is maintainable. On the other hand, the

respondent Nos.1 and 3 have taken the contention in the

written statement as the suit is not maintainable for non

issuance of notice under Section 125 of the Societies Act.

Respondent No.3 who is defendant No.3 in the trial Court

has taken the contention that the Society has purchased

the property from the plaintiff for valuable sale

consideration under the agreement of sale and also GPA

coupled with interest and due to some financial crisis, the

Society is unable to form the layout and chosen to sale the

same to the 3rd defendant. Accordingly, it was sold after

the permission of the Annual General Body Meeting of the

members of the Society. Purchasing the property by the 1st

defendant-Society which was represented by the 2nd

defendant for the purpose of forming the layout and

allotting to its members and it was sold to the 3rd

defendant which is nothing but affairs, business and

management of the Society, therefore, the notice under

Section 125 of the Societies Act is mandatory. In support

of his contention, learned counsel for respondent No.3

relied upon the judgment of the Full Bench of the High

Court, wherein the plaintiff has also examined. In this

regard, the plaintiff also produced the judgments and

respondent also filed judgments in this regard. For

convenience, Section 125 of the Co-operative Societies Act

is read as under:

"125. Notice necessary in suits.- No suit shall be instituted against a co-operative society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left."

24. The Co-ordinate Bench of this Court in the case

of the Arogyanagar Co-operative Housing Society

Limited and Another vs. Fakiragouda and Another

reported in ILR 2004 KAR 1445 has held as under:

"KARNATAKA CO-OPERATIVE SOCIETIES ACT,

SECTION 125 - Issuance of notice whether a must when suit filed against society - Membership of a society whether an important issue in such cases.

HELD - Provision of Section 125 of the Act are attracted since the relief sought for by the plaintiffs against the society relates to the businesses of the society. Any person seeking a relief against the society which touches the business of the society, such person being a member or no member is of no relevance."

25. In another judgment in the case of

Narasegowda vs. HMT Employees House Building Co-

operative Society Ltd reported in ILR 1992 KAR 3564,

the Co-ordinate Bench of this Court has held at paragraph

Nos.12 and 13 are as under:

"12. For the reasons stated hereinabove, I am of the view that the present suit is barred by the provisions of Section 118 of the Co-

operative Societies Act. Once when it is held that the dispute like the one which has presented itself for consideration is a dispute falling under the provisions of Section 70 of the Act, it would follow as a matter of logical corollary that the provisions of Section 118 of the Act would operate as a bar to the Civil Court to decide the same. Incidentally, the suit would attract the provisions of Section 125 of the Act also. Under these circumstances, it is clear that the suit is barred by law, that is to say, by reason of Section 118 R/W Section 70 of the Act. Point No. 1 is answered accordingly.

13. In view of my finding on Point No.1, Point No.2 does not fall for consideration. It is clear that once when it is held that the suit is barred under some law, the question of giving findings on the other issues does not arise at all.

Therefore, the findings given on the other issues do not survive and as such they do not survive for consideration in this Appeal also and the plaint is liable to be rejected on that count alone."

26. The same view has been taken by the Division

Bench of this Court in the case of the Karnataka

Handloom Development Corporation Limited vs.

Mandya District Central Cooperative Bank Limited in

RFA 445/2001.

27. The another judgment of this Court in the case

of Dakshayanamma vs. Daivajna Credit Co-operative

Society and others in RFA No.1919/2017 has relied

upon the judgment of the Full Bench of this Court in the

case of The Krishi Mattu Ksheera Utpadaka

Vividhoddesha Sahakari Sangh Niyamit Bakkal and

another vs. Sohanlal reported in AIR 1993

KARNATAKA 20 and has held at paragraph No.16 which

is as under:

"16. Learned counsel for the appellant has relied upon the judgment of the Full Bench of the High Court of Karnataka in the case of The Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahakari Sangh Niyamit Bakkal and another vs. Sohanlal reported

in AIR 1993 KARNATAKA 20, where the Full Bench of this Court has considered the notice under Section 125 of Co-operative Societies Act which is read as under:

In the light of the foregoing dictum of the Supreme Court there can possibly be no doubt at all that the expression 'any act' appearing in Sec. 125 is referable not merely to an illegal omission but also to an omission simpliciter. In the circumstance it behoves on our part to fall in step with the views of the apex Court as aforesaid and in the light of the same to hold that the expression 'any act' referred to in Sec. 125 is not confined to illegal omissions alone but also covers a mere omission simpliciter. In fine our answers to the questions formulated are:

(1) (1) Notice under Section 125 is mandatory, where the act in question is with reference to the society. Such notice is also necessary if the 'act' in question is with reference to an officer of the society and the 'act' or omission complained of relates to the Constitution, management or business of the society.

(ii) Notice is also mandatory where the 'act' in question covers both the society and the officer.

(2) The expression 'any act' referred to in Sec.

     125 of the Act is not confined to illegal
     omissions    alone   but   also   covers   a   mere
     omission simpliciter.

5. While parting we must hold that in the light of our views herein, the decision in the case of Ankola Urban Co-operative Credit Bank and in the Bank of Citizens, Belgaum case as also the decision in Somwarpet and Agricultural Produce Marketing Co-operative Society Ltd. are no longer good law. The matter will now go back to the Division Bench for disposal in the light of the findings recorded by under Section herein as aforesaid."

28. This Court in the case of Dakshayanamma

stated supra by following various judgments has

considered that Section 125 of the Societies Act is

necessary when the suit filed against the Society is

touching the affairs and management of the Society.

29. Now, on perusal of the averments made in the

written statement by both 1st defendant and 3rd defendant

including the plaintiff, it clearly reveals that the land was

purchased by the 1st defendant-Society for the purpose of

forming the layout and allotting the same to its members.

Therefore, the agreement was entered into between the

plaintiff and 1st defendant and 2nd defendant subsequently

for the various reasons, the property was sold by the

Society in favour of the 3rd defendant. The sale deed

produced by the plaintiff and the respondent clearly

reveals, the respondent No.2 sold the suit schedule

property to the 3rd defendant on behalf of the 1st

defendant-Society and the respondent No.3 also produced

and averred in the written statement that there was

permission granted by the AGM of the Society for selling

the property. The sale deed dated 28.05.2002 executed

by the Society representing the Muniyamma-Appellant

(deceased plaintiff) who was the fifth vendor where the 1st

defendant-Society represented by 2nd defendant-

Champakadhamaswamy as a Secretary and the Vinayaka

Enterprises who was the middleman for having purchased

the property has executed the sale deed in favour of the

3rd defendant-Golden Gate Projects including the suit

schedule property and other properties. In the sale deed

at page No.13, it is clearly mentioned that Muniyamma-

plaintiff was represented by the 1st and 2nd defendant as

GPA holders of the plaintiff and at page No.23 of the sale

deed, it is categorically mentioned that the Society by its

Annual General Body Meeting held on 10.10.1998 resolved

to authorise the managing Committee to sell off the

property by re-affirming the decision taken by the Board

meeting dated 16.08.2001 and sold the property to clear

of the loan borrowed from the Bank by the Society.

Therefore, the sale deed executed by the 2nd defendant on

behalf of the 1st defendant as a GPA holder of the plaintiff

was in order to clear the loan of the Society which was

borrowed from the Private Banks, therefore, it is the affairs

and touching the management of the Society and in order

to file the suit against the 1st defendant and the 2nd

defendant, the notice under Section 125 of the Societies

Act is mandatory. Admittedly, notice has been sent by

RPAD or in person to the Registrar of Co-operative

Societies prior to filing of the suit, therefore, without

issuing notice, a statutory notice to the Registrar of Co-

operative Societies filing the suit against defendant Nos.1

and 2 or defendant No.3 in respect of challenging the

agreement of sale or sale deed or GPA against the Society

is not maintainable without statutory notice. Therefore, the

suit filed by the plaintiff without compliance of statutory

notice under Section 125 of the Societies Act is not

maintainable. The trial Court has considered this aspect at

paragraph No.10 of the impugned order and finally

dismissed the suit. There is no need for interference over

the order passed by this Court on the ground that suit is

not maintainable. In view of non issuing notice under

Section 125 of the Societies Act, hence, answered point

No.1 in favour of the defendants as against the plaintiff.

30. Point No.2 - As regards to the limitation, the

respondent counsel has contended that the agreement of

sale was executed by the plaintiff agreeing to sell the suit

schedule property on 24.01.1992 by receiving the entire

sale considerations except a meagre balance of

Rs.1,19,000/- for 'A' schedule property and Rs.25,000/-

for 'B' schedule property. The plaintiff executed the GPA

coupled with interest by receiving the sale consideration.

Subsequently, defendant Nos.1 and 2 were acted upon the

GPA executed by the plaintiff and sold the property to

defendant No.3 vide sale deed dated 28.05.2002 and the

GPA once executed was coupled with interest is irrevocable

GPA and it cannot be cancelled and further contended that

the GPA was cancelled only in the year 2017 whereas the

sale deed was executed in the year 2002, but agreement

of sale and GPA was executed in the year 1992.

Therefore, the suit filed in the year 2017 is utterly barred

by the limitation and absolutely, there is no fraud

committed by the defendant Nos.1 and 2. It is an admitted

fact that the agreement of sale was in the year 1992. The

sale deed was executed by defendant Nos.1 and 2 in

favour of defendant No.3 in the year 2002 and admittedly,

the GPA was said to be cancelled by the plaintiff in the

year 2017.

31. The appellant counsel filed I.A.No.3/2023

under Order XLI Rule 27 of CPC seeking permission to

produce the MOU between the third and fourth respondent

and also copy of the sale deeds and agreement of sale

executed by the Muniyamma-Plaintiff in favour of the

defendant Nos.1 and 2 and the sale deed executed by the

2nd defendant in favour of the 3rd defendant. These

documents are necessary documents for considering this

appeal.

32. On perusal of the sale deeds and sale deed

executed by the defendant Nos.1 and 2 in favour of

Defendant No.3 i.e., respondent No.3 and the cancellation

of GPA dated 07.02.2017 were produced by the appellants'

counsel. On perusal of the same, the GPA has been

cancelled only on 07.02.2017 i.e., after 15 years of

execution of sale deed by defendant Nos.1 and 2 and after

25 years of the execution of GPA by the plaintiff in favour

of defendant Nos.1 and 2 and the GPA produced by the

appellant clearly reveals that it is a GPA coupled with

interest and received the sale consideration which is

irrevocable GPA.

33. The learned counsel for the appellants has

contended that there was a fraud committed on the

plaintiff, therefore, the limitation Act will not be applicable

and in order to show the fraud was committed, it has

stated the plaintiff-Muniyamma was not at all went to the

Sub-Registrar Office, but defendant Nos.1 and 2 affixed

the photographs of some lady and signature was forged by

impersonating Muniyamma-the plaintiff. On the other

hand, the same was denied by the respondent No.3 on the

ground that the GPA was acted upon by the defendant

No.2 on behalf of defendant No.1 and GPA holder is

representing, there is no necessity for the plaintiff to come

physically to the Registrar Office and there is no

impersonation or fraud on the plaintiff. In order to verify

the same, the sale deed produced by the appellants'

counsel reveals that the sale deed dated 28.05.2002

executed by the defendant Nos.1 and 2 in favour of

defendant No.3 which clearly reveals that the plaintiff

name was mentioned as one of the vendor at Sl.No.5.

There are so many other vendors name was mentioned in

the sale deeds, totally 12 vendors were represented by

defendant No.1-Society and defendant No.2 as a Secretary

representing the defendant No.1 and one

Narasimhamurthy who is proprietor of Vinayaka

Enterprises was acted upon and coordinated for the

purpose of purchasing the property from the plaintiff were

all executed sale deed as a GPA Holder and on perusal of

2nd and 3rd pages of the sale deed, there is no

photograph of Muniyamma found or name of the

Muniyamma was mentioned as a vendor who was present.

On the other hand, defendant No.2 represent as a GPA

Holder of the plaintiff- Muniyamma and representing as the

Secretary of the defendant No.1 executed the sale deed

along with one Narasimhamurthy in favour of respondent

No.3-Golden Gate Project which is the partnership firm

represented by one S.Martin. Therefore, it is a clear case

that there is no fraud committed by the defendant Nos.1

and 2 in executing the sale deed by representing as a GPA

holder of the plaintiff and no where it is mentioned in the

document that the plaintiff-Muniyamma was present

physically and executed the sale deed. On the other hand,

defendant No.2 and one Narasimhamurthy representing all

the vendors as a GPA Holder on behalf of the defendant

No.1 executed the sale deed. Therefore, learned counsel

for respondent No.3 rightly contended that there is no

fraud committed on the plaintiff in executing the sale deed.

Therefore, once the sale deed is executed in the year

2002, the limitation for filing the suit for declaration under

Article 58 of the Limitation Act, the suit for declaration of

title shall be filed within three years of right to sue accrues

and seeking the said relief barred by limitation and even

for cancellation of the instrument under Article 59 of the

Limitation Act, three years prescribed by the limitation Act

whereas suit was filed after 15 years of execution of sale

deed and after 25 years of execution of GPA. Therefore,

the suit is utterly barred by limitation, hence, answered

the point No.2 in favour of respondent No.3 and against

the appellants.

34. As regards to the another contention raised by

the respondent counsel, the GPA was coupled with interest

and even if GPA holder died, the GPA can be acted upon.

In support of his contention, the learned counsel for

respondent No.3 has relied upon the judgment of the Co-

ordinate Bench of this Court in the case of Binny Mill

Labour Welfare House Building Co-operative Society

Limited vs. D.R. Mruthyunjaya Aradhya reported in

ILR 2008 KAR 2245 is read as under:

"(D) SPECIFIC RELIEF ACT, 1963 SECTION 31

- Cancellation of a sale deed under - Unilateral cancellation of a sale deed by a vendor who had executed the sale deed 1 Legality of cancellation - HELD, If after execution and registration of the sale deed, the owner wants to get back the property, it has to be done by canceling the sale deed on any of the grounds which are available to him under the provisions of the Indian Contract Act. Unilaterally he cannot execute what is styled as a deed of cancellation, because on the date of execution and registration of the deed of cancellation, the said person has no right or interest in that property- FURTHER HELD, In the case of a sale deed executed and registered the owner completely loses his right over the property and the purchaser becomes the absolute owner. It cannot be nullified by executing a deed of cancellation because by execution and registration of a sale deed, the properties are being vested in the purchaser and the title cannot be divested by mere execution of a deed of cancellation. Therefore, even by consent. or agreement between the purchaser and the vendor, the said sale deed cannot be

annulled. If the purchaser wants to give back the property, it has to be by another deed of conveyance. If the deed is vitiated by fraud or other grounds mentioned in the Contract Act, there is no possibility of parties agreeing by mutual consent to cancel the deed. It is only the Court which can cancel the deed duly executed, under the circumstances mentioned in Section 31 and other provisions of the Specific Relief Act, 1963. Therefore, the power to- cancel a deed vests with a Court and it cannot be exercised by the vendor of a property.

35. Learned counsel for the respondents has relied

upon another judgment of the Division Bench of this Court

in the case of Mohammed @ Podiya vs. Assistant

Commissioner reported in ILR 1993 KAR 2306 where it

has held at paragraph No.5 as under:

"5. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of any express condition be terminated to the prejudice of such interest. The principle is that

when an agreement is entered into on a sufficient authorisation whereby an authority is given for the purpose of giving some benefit to the donee of the authority such an authority is irrevocable. An authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where all the rights and liabilities under a contract were) made over by a power-of-attorney, such power is an agency coupled with interest."

36. In view of the judgments both Division Bench

and the Co-ordinate Bench of this Court that once the

irrevocable GPA is executed coupled with interest that

cannot be cancelled and it was already acted upon by the

defendant Nos.1 and 2 by selling the same. Therefore, the

question of canceling or revoking the GPA after 25 years

does not arise. That apart, as per the judgment of the

Hon'ble Supreme Court in the case of Dahiben vs.

Arvindbhai Kalyaniji Bhanusali (Gajra) Dead Through

Legal Representatives and Others, the Hon'ble

Supreme Court has held as under:

"The plaintiffs averred in the plaint that the period of limitation commenced on 21-11-

2014, when they obtained a copy of the index of the sale deed dated 2-7-2009, and discovered the alleged fraud committed by Defendant 1. The plea taken in the plaint that they learnt of the alleged fraud in 2014, on receipt of the index of the sale deed, is wholly misconceived, since the receipt of the index would not constitute the cause of action for filing the suit. On a reading of the plaint, it is clear that the cause of action arose on the non-payment of the bulk of the sale consideration, which event occurred in the year 2009. The plea taken by the plaintiffs is to create an illusory cause of action, so as to overcome the period of limitation. The plea raised is rejected as being meritless and devoid of any truth. The conduct of the plaintiffs in not taking recourse to legal action for over a period of five-and-half years from

the execution of the sale deed in 2009, for payment of the balance sale consideration, also reflects that the institution of the present suit is an afterthought. The plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property. The plaintiffs did not make any complaint whatsoever to the Collector at any point of time. The conduct of the plaintiffs is reflective of lack of bona fide.

Suhrid Singh v. Randhir Singh. (2010) 12 SCC 112: (2010) 4 SCC (Civ) 585, cited

The present case is a classic case, where the plaintiffs by clever drafting of the plaint, attempted to make out an illusory cause of action, and bring the suit within the period of limitation. The plaintiff's deliberately did not mention the date of the registered sale deed dated 2-7-2009 executed by them in favour of Respondent 1, since it would be evident that the suit was barred by limitation. The prayer however mentions the date of the subsequent sale deed i.e. 1-4-2013 when the suit property

was further sold by Respondent 1 to Respondents 2 and 3. The omission of the date of execution of the sale deed on 2-7-2009 in the prayer clause, was done deliberately and knowingly, so as to mislead the court on the issue of limitation."

37. As per the provisions of Sections 201 and 202

of the Indian Contract Act, 1872, the termination of

agency must be in accordance with Sections 201 and 202

of Indian Contract Act, 1872 and the same is read as

under:

"201. Termination of agency.--An agency is terminated by the principal revoking his authority, or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors. --An agency is terminated by the principal revoking his authority, or by the agent renouncing the

business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.

202. Termination of agency, where agent has an interest in subject-matter.--Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. --Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (a) A gives authority to B to

sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."

38. Section 202 of the Indian Contract Act

categorically define that where the agent has himself an

interest in the property which forms the subject-matter of

the agency, the agency cannot, in the absence of an

express contract, be terminate to the prejudice of such

interest. Even in this case, the plaintiff executed

agreement of sale and GPA in favour of the defendant

Nos.1 and 2 in the year 1992 and the same was acted

upon by defendant Nos.1 and 2 in the year 2002.

Therefore, the agency gets terminated by the business of

the agency being completed and even otherwise the GPA

cannot be cancelled by the plaintiff without any express