Pratima Chowdhury Vs. Kalpana Mukherjee & ANR.
[Civil Appeal No. 1938 of 2014 arising out of SLP (Civil) Nos. 15252 of 2006]
JAGDISH SINGH KHEHAR, J.
1. Orchestra Co-operative House Society Limited (hereinafter referred to as 'the Society') raised flats at 48/IE, Gariahat Road, Calcutta - 700019.Indirani Bhattarcharya became a member of the Society on 12.1.1987. She was issued share certificates bearing nos. 0047 and 0048. Based on the above membership she was allotted flat no. 5D for a consideration of Rs. 4lakhs. The above flat measuring 900 sq. ft. comprised of three bed rooms, two bath rooms, one drawing-cum-dinning room, a kitchen and verandah on the fourth floor. In addition to the above, she was allotted one covered garage space on the ground floor. The transfer of the flat no. 5D by the Society to Indirani Bhattacharya was approved by the Deputy Registrar, Co-operative Societies.
2. On 27.3.1991, Indirani Bhattacharya submitted her resignation from the Society in favour of Pratima Chowdhury (i.e., the petitioner herein).On 15.4.1991, Indirani Bhattacharya executed an agreement for transfer of flat no. 5D to Pratima Chowdhury subject to the consent of the Society and the approval of the Deputy Registrar, Co-operative Societies, for a consideration of Rs. 4 lakhs. The Society having consented to the request of Indirani Bhattacharya sought the approval of the Deputy Registrar, Co-operative Societies through a letter dated 29.4.1991.
In this behalf it would also be relevant to mention that Board of Directors of the Society had resolved in its meeting held on 16.2.1992, to accept the resignation of Indirani Bhattacharya, as also, the consequential transfer of the membership of the Society and the ownership of the flat to the name of Pratima Chowdhury. In the above resolution, the name of Pratima Chowdhuryas a member of the Society was approved with effect from 9.1.1992. The Secretary of the Society informed Pratima Chowdhury on 17.2.1992, that her membership to the Society, as also, the transfer of flat no. 5D to her name, had been approved by the Deputy Registrar, Co-operative Societies.
3. The facts available on the records reveal that Partha Mukherjee (son-in-law of the petitioner's sister, and son of the respondent) occupied the petitioner's flat. Partha Mukherjee was employed as Regional Sales Manager with Colgate Palmolive (India) Limited. On 9.3.1992, Colgate Palmolive(India) Limited, confirmed having taken flat no. 5D on lease and license, for a period of three years (with effect from 1.4.1992), for the residence of Partha Mukherjee. The pleadings also reveal, that with effect from1.4.1992, Colgate Palmolive (India) Limited, took the aforesaid flat on a monthly rent of Rs. 5,000/-. The above said monthly rent, was deposited in the joint account of the petitioner Pratima Chowdhury and Partha Mukherjee.
4. On 29.6.1992, the petitioner Pratima Chowdhury addressed a letter to the Secretary of the Society, requesting the Society to transfer flat no.5D to the name of her nominee Kalpana Mukherjee. The letter dated29.6.1992 of Pratima Chowdhury, made some express factual disclosures. Firstly, that she was not in good health. Secondly, that she was not in a position to move to Calcutta from Bombay in the near future. Thirdly, that Kalpana Mukherjee was already residing in the flat in question along with Partha Mukherjee. Fourthly, that above nominee Kalpana Mukherjee was her close relative. In addition to the request of transfer of flat no. 5D in favour of her nominee Kalpana Mukherjee, Pratima Chowdhury also informed the Society through her letter dated 29.6.1992, that all municipal taxes and service charges in connection with the above flat should be collected from Kalpana Mukherjee.
5. Pratima Chowdhury then addressed another letter dated 11.11.1992, to the Secretary of the Society, reiterating her request made in the previous letter dated 29.6.1992 wherein she again expressed clearly that the transfer being sought by her, was without any monetary consideration.
6. It was pointed out in letter dated 11.11.1992, that the formal request for the transfer was only being made, in order to comply with the rules regulating such transfer, and also, to avoid future complications. Consequent upon the aforesaid deliberations, Pratima Chowdhury executed an agreement dated 13.11.1992, transferring her right, title and interest in the flat no. 5D. On the same day as the aforesaid agreement was executed, Kalpana Mukherjee moved an application (on 13.11.1992).
7. The Board of Directors of the Society in their meeting held on14.2.1993, resolved to accept the resignation of Pratima Chowdhury, and to accept the membership of Kalpana Mukherjee (in place of Pratima Chowdhury),and to seek the approval of the Deputy Registrar, Co-operative Societies for the transfer of flat no. 5D to the name of Kalpana Mukherjee, on the basis of letters of Pratima Chowdhury dated 11.11.1992 and 13.11.1992.Accordingly, the Secretary of the Society addressed a letter dated10.3.1993 to the Deputy Registrar, Co-operative Societies, for the approval of the decision of the Board of Directors (of the Society, dated14.2.1993).
8. On 23.4.1993, Pratima Chowdhury wrote a letter to the Senior Commercial Executive, of the Calcutta Electric Supply Corporation (South Region Office) requesting him to transfer the electricity-supply meter of flat no.5D to the name of Kalpana Mukherjee. The instant letter dated 23.4.1993,is also disputed by Pratima Chowdhury. She has even disputed her signature on the said letter. She also filed a first information report at the Gariahat Police Station, Kolkata, complaining that her signature on theabove letter was forged.
9. The Assistant Registrar, Co-operative Societies raised certain objections on the request of the Society for transfer of flat no. 5D from the name of Pratima Chowdhury to the name of Kalpana Mukherjee. In this behalf the Assistant Registrar, Co-operative Societies informed the Secretary of the Society, that the application of Kalpana Mukherjee for membership had not been submitted in the proper format. It was also pointed out, that the original affidavit had not been appended to the application. Lastly, it was brought out, that the Salary Certificate, Income Tax Clearance Certificate and Professional Tax Certificates had not been appended to the application of Kalpana Mukherjee, for the transfer of the flat in her name. On 22.9.1993, the Secretary of the Society provided all the required documents sought by the Department of the Co-operative Societies.
10. Partha Mukherjee was transferred by his employer Colgate Palmolive(India) Limited, from Calcutta to Bombay. Consequently, Colgate Palmolive(India) Limited terminated the agreement executed by it with Pratima Chowdhury on 19.10.1993, with immediate effect. In the letter dated19.10.1993, Colgate Palmolive (India) Limited required Partha Mukherjee tohand over vacant possession of flat no. 5D to Pratima Chowdhury, after refund of security. On 21.10.1993, Kalpana Mukherjee, from her own account, deposited rent in the Bank account of Pratima Chowdhury. On28.10.1993, Partha Mukherjee addressed a letter to P.R. Keswani, Company Secretary of Colgate Palmolive (India) Limited, along with a receipt bearing no. 9893, depicting refund of the security deposit (of Rs. 60,000/-). The aforesaid refund was shown to have been made by Pratima Chowdhury.
11. On 16.12.1994, 500 shares of Tata Chemicals Limited, 50 shares of Siemens, 500 shares of Indian Aluminium and 100 shares of I.T.C. Hotels, standing in the joint names of Partha Mukherjee and Sova Mukherjee (wife of Partha Mukherjee) were transferred to the name of Pratima Chowdhury. According to the petitioner Pratima Chowdhury, the above transfer of shares was in lieu of loans extended by her to Partha Mukherjee. However, according to Kalpana Mukherjee, the transfer of the above shares, constituted consideration paid on her behalf (by her son Partha Mukherjee)to Pratima Chowdhury in lieu of the transfer of flat no. 5D.
12. Pratima Chowdhury wrote a letter dated 28.2.1995 to the Secretary of the Society, that she had not received any reply to her letter dated11.11.1992. She also informed the Secretary of the Society, that she had decided to return to Calcutta permanently. Accordingly, she informed the Secretary of the Society, that her request for transfer of her membership to the name of Kalpana Mukherjee, be treated as withdrawn. It is the case of Pratima Chowdhury, that the Society never responded to her letter dated28.2.1995. It is also her case, that her letter dated 28.2.1995 was never forwarded by the Society, to the Department of Co-operative Societies.
13. On 8.3.1995, the Society approached the Deputy Registrar, Co-operative Societies, seeking approval for the admission of Kalpana Mukherjee as a member of the Society (in place of Pratima Chowdhury). On 13.3.1995, the Deputy Registrar, Co-operative Societies conditionally approved the membership of Kalpana Mukherjee. Accordingly, on 13.3.1995 itself the shares of Pratima Chowdhury were transferred to the name of Kalpana Mukherjee. On 22.3.1995, Pratima Chowdhury addressed a letter to the Deputy Registrar, Co-operative Societies, with a copy to the Chairman of the Society. In the above letter, the Deputy Registrar, Co-operative Societies was requested to direct the Society to withdraw the offer of transfer of her membership to Kalpana Mukherjee.
It was also requested, that the application made by Kalpana Mukherjee for transfer of share certificates in her name, be not approved. The instant letter dated 22.3.1995, depicts the fact that Pratima Chowdhury was unaware of the deliberations of the Society, as also, the approval (of the deliberations of the Society), by the Deputy Registrar, Co-operative Societies, on13.3.1995. In pursuit of the same objective, Pratima Chowdhury wrote another letter dated 28.3.1995, to the Secretary of the Society. Sheen closed therewith, the letter which she had addressed to the Deputy Registrar, Co-operative Societies dated 22.3.1995. Therein, she again reiterated, that her request for transfer of membership in favour of Kalpana Mukherjee be treated as withdrawn.
In order to consider the request made by Pratima Chowdhury in her letter dated 22.3.1995 (to the Deputy Registrar, Co-operative Societies) and the letter dated 28.3.1995(to the Secretary of the Society); the Society convened a meeting of the Board of Directors on 2.4.1995. Rather than considering the issue on merits, the Board of Directors resolved, that it had no legal competence to restore the membership of the Society, as also, the retransfer of the ownership of the flat no. 5D, to Pratima Chowdhury. Having so resolved, the Secretary of the Society forwarded a copy of the resolution dated2.4.1995, to the petitioner on 10.4.1995.
14. At this juncture, it would be relevant to mention, that the Board of Directors of the Society approved the transfer of flat no. 5D (comprising of three bed rooms, two bath rooms, one drawing-cum-dinning room, one verandah and one kitchen on the fourth floor, located at no. 48/IE, Gariahat Road, Calcutta - 700019 to the name of Kalpana Mukherjee. In addition to the aforesaid flat, the ownership of Pratima Chowdhury alsocomprised of a covered garage space, on the ground floor. The same were not mentioned in the clearances dated 14.2.1993 (by the Board of Directors of the Society) and 13.3.1995 (by the Deputy Registrar, Co-operative Societies). Consequently based on the agreement dated 25.4.1995 between Kalpana Mukherjee and the Society, the said garage space was also subsequently transferred to the name of Kalpana Mukherjee.
15. On 16.4.1995 within two weeks, from the date decision taken by the Board of Directors (on 2.4.1995) and within one week from the date of communication thereof to the petitioner (through letter dated 10.4.1995),Pratima Chowdhury addressed a notice dated 16.4.1995, contesting the validity of the Board of Directors' Resolution dated 2.4.1995. The petitioner also assailed the approval of the said transfer dated 13.3.1995. The Deputy Registrar, Co-operative Societies referring to the petitioner's letter dated 28.2.1995 (wherein Pratima Chowdhury had withdrawn her request for transfer of membership in favour of Kalpana Mukherjee), wrote a letter dated 31.5.1995 to the Secretary of the Society.
In the letter dated31.5.1995, the Deputy Registrar, Co-operative Societies also highlighted the fact that, the Society had not brought the letter dated 28.2.1995 to the notice of Deputy Registrar, Co-operative Societies, at the time of seeking approval of the Co-operative Department. The Secretary of the Society was accordingly directed, to take a decision on the matter, and to forward the same to the Deputy Registrar, Co-operative Societies.
Being alive of the letter dated 31.5.1995, which was addressed by the Deputy Registrar, Co-operative Societies to the Secretary of the Society, the petitioner through her letter dated 13.6.1995 informed the Secretary of the Society, that the withdrawal letter dated 28.2.1995 addressed by her was received by the Secretary of the Society, and further that the same had been duly acknowledged on 6.3.1995. The petitioner highlighted the fact, that the approval of the Deputy Registrar, Co-operative Societies should not have been sought (by the Secretary of the Society), after the receipt of the petitioner's communication dated 28.2.1995.
16. Since, the petitioner was not communicated any determination, by the concerned authorities. She addressed a notice on 9.9.1995, calling upon the Secretary of the Society, to deliver the possession of the flat no. 5D, along with the share certificates, to her within seven days of the receipt of the said notice. On 21.11.1995, the Society denied all the allegations made by the petitioner against the Society (contained in the notice). On the claim of retransfer of the shares and flat made by the petitioner, the Society responded by asserting, that the shares had been transferred to the name of Kalpana Mukherjee, and on the basis thereof flat no. 5D also had been transferred in her name, thereupon, the Society did not have any legal authority to restore/retransfer the same to the name of the petitioner. On19.12.1995, the Deputy Registrar, Co-operative Societies also informed Pratima Chowdhury, that the transfer of her shares and flat in favour of Kalpana Mukherjee had been completed, and since the Society had resolved on2.4.1995 that it had no legal competence to cancel the same, nothing could be done in the matter.
17. Dissatisfied with the determination of the Co-operative Societies, as also, the denial of the consideration at the hands of the Deputy Registrar, Co-operative Societies, the petitioner filed Dispute Case No. 29/RCS of1995-96. The aforesaid dispute case was adjudicated upon by D.K. Ghosh in his capacity as Arbitrator.17(i) During the course of the above determination, Kalpana Mukherjee (who was impleaded as respondent no. 1) filed a reply on 22.2.1996 which deserves a special mention. Firstly, according to the reply filed by Kalpana Mukherjee flat no. 5D was purchased by Partha Mukherjee in the nameof Kalpana Mukherjee (mother of Partha Mukherjee).
The above flat was purchased for a total consideration of Rs. 4,29,000/-. The said consideration was paid by way of transfer of shares, in the name of Partha Mukherjee to the name of Pratima Chowdhury. Highlighting the above factual position is important because the entire paper work pertaining to the transfer of flat no. 5D, from the name of Pratima Chowdhury to the name of Kalpana Mukherjee indicates, that the above transfer was without any monetary consideration, whereas stands adopted by Kalpana Mukherjee wasthat as a matter of fact the said transfer was on a consideration of Rs.4,29,000/-. Secondly, according to Kalpana Mukherjee (respondent no. 1),Pratima Chowdhury's letter dated 28.2.1995 was afterthought. It is therefore, that Kalpana Mukherjee in her reply emphasized that the letter dated 28.2.1995, was only a scheme devised by Pratima Chowdhury to wriggle out of the transaction.
17(ii) The Secretary of the Society filed separate written reply to the case filed by Pratima Chowdhury. In its reply the Society supported the transfer of shares, as also, the transfer of flat no. 5D to the name of Kalpana Mukherjee. The Society clearly brought out in their reply, that Pratima Chowdhury through her letter dated 29.6.1992 had informed the Society, that Kalpana Mukherjee was in occupation of the flat, and as such, maintenance charges for the flat should be recovered from her. Furthermore, according to the Society, the transfer of the shares, as also, of flat no. 5D to the name of Kalpana Mukherjee was approved at the request of Pratima Chowdhury, made through her letter dated 11.11.1992. It was submitted, that the aforesaid request was considered by the Department of Co-operative Societies, which approved the resignation of Pratima Chowdhury and the consequential transfer of membership vide Resolution of the Board of Directors of the Society dated 14.2.1993.
The above resolution had been forwarded by the Secretary of the Society, to the Deputy Registrar, Co-operative Societies (by letter dated 10.3.1993), for approval. It was pointed out that the Deputy Registrar, Co-operative Societies had approved the Resolution of Board of Directors of the Co-operative Societies on13.3.1995. Additionally, it was pointed out, that after the approval of the change of membership to the name of Kalpana Mukherjee, the petitioner Pratima Chowdhury had required the Senior Commercial Executive of Calcutta Electric Supply Corporation, to transfer the electricity-supply meter of flat no. 5D to the name of Kalpana Mukherjee.
According to the Society, the above facts clearly evidenced the unequivocal intention of Pratima Chowdhury to transfer her shares and flat no. 5D to the name of Kalpana Mukherjee, which was given due effect to by the Society after seeking the approval of the Deputy Registrar, Co-operative Societies. In view of the afore stated factual position, the Society denied the claim raised by Pratima Chowdhury in Dispute Case No. 29/RCS of 1995-96.
17(iii) It is also imperative to record herein, that Pratima Chowdhury had filed rejoinder, to the written statements filed on behalf of Kalpana Mukherjee and the Society before the Arbitrator. It was pointed out in there joinder, that Partha Mukherjee was married to Sova Mukherjee. Sova Mukherjee was the daughter of H.P. Roy and Bani Roy (sister of the petitioner, Pratima Chowdhury). On account of the above relationship she had treated Sova Mukherjee as her daughter and Partha Mukherjee as her son. Consequently on the transfer of Partha Mukherjee to Calcutta (from Bombay), she allowed him to reside in flat no. 5D.
At the behest of Partha Mukherjee, his employer Colgate Palmolive (India) Limited entered into a lease agreement with Pratima Chowdhury on 9.3.1992. Under the lease agreement Pratima Chowdhury was entitled to rent at the rate of Rs. 5,000/-per month. The lease agreement was executed for a period of three years, with overriding condition, that the tenure of lease would coincide with the tenure of Partha Mukherjee at Calcutta, while in the employment of Colgate Palmolive (India) Limited. It was also pointed out, that Partha Mukherjee had opened a joint account along with petitioner Pratima Chowdhury, for the deposit of rent payable by Colgate Palmolive (India)Limited.
It was also pointed out, that Partha Mukherjee singularly operated the aforesaid joint account. In his above capacity he encashed the rent deposited by Colgate Palmolive (India) Limited, without the knowledge and notice of the petitioner Pratima Chowdhury. She also asserted in the rejoinder, that she could obtain the details of the agreement executed with Colgate Palmolive (India) Limited, as also, the deposits of rent in her joint account with Partha Mukherjee, only after she had issued a letter to Colgate Palmolive (India) Limited, that she would not make any claim from the employer of Partha Mukherjee, on the basis of information supplied.
In her rejoinder Pratima Chowdhury also asserted, that Partha Mukherjee had forced her to sign the letter dated 11.11.1992,without disclosing the contents thereof. The categoric stance adopted by Pratima Chowdhury in her rejoinder was, that she was not aware of the contents of letter dated 11.11.1992, and furthermore, Partha Mukherjee had obtain her signature on other blank papers as well, by falsely informing her that the papers would be used to explain his stay in flat no. 5D. She also denied having executed the document dated 13.11.1992, which was allegedly notarized at Calcutta. In fact she denied her presence at Calcutta on 13.11.1992. She further stated, that Partha Mukherjee did not remain in employment of Colgate Palmolive (India) Limited after his transfer to Bombay. It was also pointed out by her, that on his return to Bombay, Partha Mukherjee started his independent business in aluminium products.
For the said business Pratima Chowdhury claims to have advanced a loan of Rs.2 lakhs to Partha Mukherjee. The loan stated to have been extended to Partha Mukherjee was by way of a cheque drawn in favour of Bharat Aluminium Company, for the supply of raw material for the business of Partha Mukherjee. She further contended, that Partha Mukherjee also took loan of Rs. 1,50,000/- from Bani Roy (sister of the petitioner, Pratima Chowdhury). It was pointed out, that the share certificates held by Partha Mukherjee jointly with his wife Sova Mukherjee, were transferred to the petitioner Pratima Chowdhury and her sister Bani Roy during the year1994, toward repayment of loans taken from them by Partha Mukherjee.
The position accordingly adopted was, that the transfer of share certificates did not constitute consideration in lieu of the transfer of flat no. 5D to Kalpana Mukherjee. A categoric assertion was made by the petitioner Pratima Chowdhury in her rejoinder, that on 30.11.1992 Partha Mukherjee had no company shares either in his own name or in the name of his wife SovaMukherjee (nor in the joint names of the husband and wife). Accordingly, the plea raised by Kalpana Mukherjee in her reply (to the dispute case filed by the petitioner Pratima Chowdhury) was that the transfer transaction was for consideration, and that, the payment of consideration made by transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, was false.
Pratima Chowdhury also denied, that she had addressed a letter dated 23.4.1993 to the Senior Commercial Executive of the Calcutta Electric Supply Corporation (South Region Office). She disputed even her signatures on the above letter, and further asserted, that she had filed a first information report at the Gariahat Police Station, Kolkata. On the basis of the factual position noticed herein above, the petitioner Pratima Chowdhury reiterated, that she had neither surrendered, nor resigned from the membership of the Society, norhad she sought the transfer of flat no. 5D from her name to the name of Kalpana Mukherjee.
18. Before the Arbitrator, the petitioner examined three witnesses. She examined herself as PW1, she examined Vani Ganapati as PW2 and H.P. Roy asPW3. H.P. Roy PW3 (is married to Bani Roy, the sister of the petitioner Pratima Chowdhury) is the father-in-law of Partha Mukherjee. Kalpana Mukherjee examined four witnesses in her defence. She examined herself asDW1, Partha Mukherjee her son was examined as DW2, the Secretary of the Society was examined as DW3 and S.N. Chatterjee, Advocate, who had notarized the documents referred to above, was examined as DW4.
19. In the process of adjudicating upon the matter, the Arbitrator framed six issues of fact, and seven issues of law. The same are being extracted hereunder:
"QUESTIONS OF FACT INVOLVED
i) Whether the Plaintiff tendered resignation on 11.11.92 from the membership of the Society or not.
ii) Was the document executed on 13.11.92 a deed of transfer of flat or an agreement for transfer of flat.
iii) Whether consideration money was paid by the Defendant no. 1 to the plaintiff or not.
iv) Whether the payment of consideration money by way of transfer of shares of companies can be treated as valid payment of consideration money or not.
v) Whether the Defendant no. 2 accepted the admission of the membership of the Defendant no. 1 on 14.2.93 or
vi) Whether the flat in question was encumbered due to existence of lease and license agreement at the material point of time i.e. on 11.11.92 or on 13.11.92.
"QUESTIONS OF LAW INVOLVED
i) Whether the instant dispute is barred by law of limitation.
ii) Whether sub-section 9 of section 85 of West Bengal Co- Operative Societies Act, 1983 was followed in case of transfer of flat in question of the plaintiff.
iii) Whether section 69 and 70 of the West Bengal Co-Operative Societies Act 1983 were followed in respect of admission of membership of the Defendant no. 1.
iv) Whether Rules 135(3) (a) and 142(1) of West Bengal Co- Operative Societies Rules 1987 were obeyed or not.
v) Whether Rule 127(1) of West Bengal Co-Operative Societies Rules 1987 was obeyed in case of nomination or not.
vi) Whether the disputed transfer of flat contradicted the relevant provisions of the Bye-laws of the Defendant Society or not.
vii) The Doctrine of estoppel as per sections 115 & 116 of the Evidence Act 1872 whether attracted or not."
20. It is necessary for us to briefly record the factual as also the legal conclusions drawn by the Arbitrator in his order dated 5.2.1999,while disposing of the disputes raised by Pratima Chowdhury. Accordingly we are summarizing the same hereunder:-
(i) In respect of the letter dated 11.11.1992, the Arbitrator observed that the same was drafted by Partha Mukherjee. This inference came to be drawn from the manuscript of the original. The Arbitrator pointed out that the letter dated 11.11.1992, disclosed that the transaction was not based on passing of monetary consideration, whereas, Kalpana Mukherjee hadexpressly asserted in her defence, that the transaction was executed on an agreed consideration of Rs. 4,29,000/-. Kalpana Mukherjee had also affirmed, that the aforesaid consideration had passed from the transferee to the transferor by transfer of shares of Partha Mukherjee, to the name of Pratima Chowdhury.
The Arbitrator relying on the contents of the letter dated 11.11.1992, recorded that the letter itself mentioned that the details disclosed therein, were meant purely to comply with the rules and to avoid future complications. The Arbitrator felt, that if Pratima Chowdhury had the intention to sell the flat, she would have mentioned the same in her letter dated 11.11.1992. It was also observed by the Arbitrator, that there was no justification for not mentioning the monetary consideration in the said letter. On the instant aspect of the matter the Arbitrator was of the view, that the disclosure of the above consideration would have clearly avoided future complications (which seem to be the intention for writing the letter dated 11.11.1992).
The Arbitrator also pointed out, that the letter dated 11.11.1992 could not be treated as a letter of resignation of the petitioner Pratima Chowdhury from the Society. In this behalf it was noticed, that the word "resignation" was completely absent from the text of the letter dated 11.11.1992.
(ii) In respect of letter dated 13.11.1992 the Arbitrator pointed out, that the same was notarized by S.N. Chatterjee, Advocate, who was the son-in-law of the sister of Kalpana Mukherjee (defendant No. 1, before the Arbitrator). Although, the above notary stated that the letter dated13.11.1992 was signed by all the parties concerned before him at Calcutta,he acknowledged, that he did not issue any not arian certificate in terms of Section 8 of the Notary Act.
According to the Arbitrator, Pratima Chowdhury and all the witnesses appearing for her, had unequivocally and categorically affirmed, that she (Pratima Chowdhury) was in Bombay on11.11.1992, as also, on 13.11.1992. Therefore, according to the Arbitrator, the question of her appearing before the notary at Calcutta on13.11.1992, did not arise at all. According to the Arbitrator, the registration number of the Society had not been mentioned in the document dated 13.11.1992, this according to the Arbitrator, made the document suspicious because Anil Kumar Sil, the Secretary of the Society, had mentioned that the above document dated 13.11.1992 was executed at his residence. If the above factual position was correct, according to the Arbitrator, the registration number would have been supplied by the Secretary of the Society, and would have been mentioned in the document itself.
Furthermore, according to the Arbitrator, the document dated13.11.1992 was in the nature of deed of transfer, but such transfer would materialize after (and not before) the consent of the Board of Directors of the Society, and the approval of the Deputy Registrar, Co-operative Societies. As per the Arbitrator, even the first step towards transfer of flat no. 5D had not commenced on 13.11.1992, and therefore, the question of allotment and handing over the possession of the flat to the nominee Kalpana Mukherjee, in accordance with the terms and conditions of the allotment and bye-laws of the Society did not arise either in law or in fact, as has been wrongly stated in the said document dated 13.11.1992. As per the Arbitrator even the document dated 13.11.1992 was silent on the consideration for such transfer, despite Kalpana Mukherjee expressing that the above transfer was for a sale consideration of Rs. 4,29,000/-.
According to the Arbitrator, the possession of Kalpana Mukherjee, was through Partha Mukherjee, because of the lease and license agreement between Pratima Chowdhury and Colgate Palmolive (India) Limited (which commenced on 1.4.1992 and was terminated on 19.10.1993), and not on the basis of the document dated 13.11.1992. The Arbitrator also pointed out, that Kalpana Mukherjee had deposited rent in the account of Pratima Chowdhury on 21.10.1993, describing it as rent payable to Pratima Chowdhury. The Arbitrator further observed that Pratha Mukherjee in his letter dated 28.10.1993 mentioned Pratima Chowdhury as the landlady of flat no. 5D. Based on the above two instances of 21.10.1993 and 28.10.1993, the Arbitrator was of the view, that the assertion of transfer of flat no. 5Dby Pratima Chowdhury to Kalpana Mukherjee stood clearly annihilated.
(iii) On the issue of the consideration money, the Arbitrator noted, that Kalpana Mukherjee had stated in her defence, that the parties had orally settled the passing of consideration in lieu of flat no. 5D, at Rs.4,29,000/-. It was also her contention, that the parties had settled that the above agreed consideration would be paid by Partha Mukherjee to Pratima Chowdhury by transferring his shares in different companies to the name of Pratima Chowdhury. But Pratima Chowdhury categorically denied the passing of any consideration, as she had no intention to sell the property. She also asserted, that the shares shown to have been transferred from the name of Partha Mukherjee to the name of Pratima Chowdhury, were acquired by Partha Mukherjee long after November, 1992 (when the letters dated11.11.1992 and 13.11.1992 were issued) i.e. from August, 1993 to April,1994. The details of the transfer of shares was disclosed in the award passed by the Arbitrator as under:-
"COMPANY'S NAME NO. OF SHARES ACQUIRED Tata Chemicals Ltd. 50 nos. 8.9.93 Tata Chemicals Ltd. 450 nos. 27.10.93 Siemens 50 nos. 2.8.93 Indian Aluminium 500 nos. 4.3.94 I.T.C. Hotels 100 nos. acquired with Mr. H.P. Roy 4.4.94" The above shares were acquired by Partha Mukherjee jointly, either with his wife or with his father-in-law, long after the material point of time. Pratima Chowdhury's assertion before the Arbitrator, questioning truthfulness of the assertion of Kalpana Mukherjee, was also based on the fact that, Kalpana Mukherjee (or Partha Mukherjee) could not have agreed to transfer to Pratima Chowdhury, what they did not themselves hold when the transaction was allegedly executed.
In order to falsify the contention of Kalpana Mukherjee (and Partha Mukherjee) that consideration was paid to Pratima Chowdhury by transfer of shares as noticed above, it was stated that after Partha Mukherjee was transferred from Calcutta to Bombay in the year 1993, he did not continue with his employment with Colgate Palmolive (India) Limited, as he wanted to start a business of aluminium productswith one R.K. Sen in Bombay. Keeping in view the above objective, Partha Mukherjee took a loan of Rs. 2 lakhs from Pratima Chowdhury. The above loan was extended by Pratima Chowdhury by way of cheques drawn in favour of Bharat Aluminium Company Limited for supply of raw materials for Partha Mukherjee's business. It was further contended that Partha Mukherjee similarly took a loan of Rs. 2 lakhs from his own wife Sova Mukherjee which was repaid by Partha Mukherjee through cheques (bearing nos. 021865, 021866and 021867) drawn on the Bank of Baroda.
It was further pointed that Partha Mukherjee had similarly taken a loan for a sum of Rs.1.5 lakhs for the same purpose from Bani Roy (his mother-in-law) which he had still not repaid. It was pointed out, that at the asking of H.P. Roy (his own father-in-law, father of Sova Mukherjee) Partha Mukherjee had transferred share certificates standing in his name, and in the name of his wife Sova Mukherjee, to the name of Pratima Chowdhury, towards repayment of the abovementioned loans. Accordingly, the case of Pratima Chowdhury was, that transfer of shares by Partha Mukherjee to the name of Pratima Chowdhury, was for a completely different transaction, and had nothing to do with the allowing of the usage and occupation of the flat, by Kalpana Mukherjee andPartha Mukherjee.
(iv) On the lease and license agreement the Arbitrator noticed, thatPartha Mukherjee (son of Kalpana Mukherjee), and son-in-law of Pratima Chowdhury's sister Bani Roy, was allowed to reside in flat no. 5D,consequent upon his transfer from Bombay to Calcutta (while in the employment of Colgate Palmolive (India) Limited). It was also noticed,that the lease and license agreement, was executed by Colgate Palmolive(India) Limited, at the instance of Partha Mukherjee, for a monetary consideration of Rs. 5,000/- per month, as rent payable to Pratima Chowdhury. To deposit the above consideration Partha Mukherjee opened a joint account in the names of Pratima Chowdhury and himself.
The Arbitrator noted, that when Partha Mukherjee drafted the letter dated11.11.1992, he utterly neglected to mention the subsisting lease and license agreement between Colgate Palmolive (India) Limited and Pratima Chowdhury. The Arbitrator also noticed, that Kalpana Mukherjee did not inform Colgate Palmolive (India) Limited that flat no. 5D had been transferred from the name of Pratima Chowdhury to her name. On the contrary the Arbitrator pointed out, that Kalpana Mukherjee on 21.10.1993,deposited rent in the account of Pratima Chowdhury, by filing the bank deposit slips. Furthermore, the Arbitrator noticed, that Partha Mukherjee in his letter dated 28.10.1993 mentioned, that Pratima Chowdhury as the landlady of flat no. 5D.
According to the Arbitrator, the above factual position clearly indicates, that Kalpana Mukherjee along with her son Partha Mukherjee were aware, that flat no. 5D belonged to the petitioner,even on 21/28.10.1993. Whereas, they wrongly depicted the transfer thereof from the name of Pratima Chowdhury to the name of Kalpana Mukherjee through letter dated 11.11.1992 and 13.11.1992. Since the lease and license agreement between Colgate Palmolive (India) Limited and Pratima Chowdhurycontinued from 1.4.1992 to 19.10.1993, there was no question of handing over of possession thereof by Pratima Chowdhury to Kalpana Mukherjee.
(v) On the submissions advanced on behalf of Pratima Chowdhury in respect of one covered garage space on the premises of the Society is concerned, the Arbitrator concluded from the documents submitted by Kalpana Mukherjee, that Pratima Chowdhury had one covered garage space also. The said covered garage space was not mentioned in the document dated 13.11.1992. Thereafter, based on an agreement executed between Kalpana Mukherjee on the one hand and the Society on the other, the said garage space was also transferred to the name of Kalpana Mukherjee on 25.4.1995. According to the Arbitrator, the instant agreement dated 25.4.1995, had no validity as the same was neither mentioned in the letter dated 11.11.1992, nor in the document dated 13.11.1992. And therefore cannot be considered as having the approval of Pratima Chowdhury.
Accordingly, the Arbitrator expressed the view that the covered garage space must be deemed to have never been transferred by Pratima Chowdhury to Kalpana Mukherjee. The Arbitrator also concluded, that the agreement dated 25.4.1995 could not have been executed in the absence of Pratima Chowdhury. Based on the above factual position Pratima Chowdhury had also alleged connivance between Kalpana Mukherjee and the Society, so as to deprive Pratima Chowdhury of her property.
(vi) Besides the above factual conclusions drawn by the Arbitrator, the Arbitrator had also concluded that the Society violated various provisions of the West Bengal Co-operative Societies Act, 1983, and the rules framed there under, as also the bye-laws of the Society. The Arbitrator summarized the conclusions drawn on the legal issues as under:- "Keeping in view of the all above, I am of the opinion that the transfer of the flat no. 5D of the Defendant No. 2 Society was not done in accordance with laws including West Bengal Co- Operative Socities Act, Rules, Indian Contract Act, Transfer of Property Act due to reason at a glance.
1) Section 85(9), Section 70, Section 69 of West Bengal Co- Operative Socities Act 1983 have been flouted.
2) Rule 127(1), Rule 135(3)(a), Rule 142(1) have been flouted.
3) Bye-laws have been contradicted.
4) No consideration money was paid by the Defendant no. 1 to the Plaintiff.
5) Societies accepted the resignation of the Plaintiff on 14.2.93 which she had not tendered, if that be so, the society did not act as per Rule 143 also.
6) The flat in dispute was under the lease and license agreement at the material time since bank account in this respect was operated by the son of the Defendant no. 1 who also deposited cheque on Plaintiff's behalf.
7) The instant dispute case is not barred by limitation.
8) The transaction of 13.11.92 does not attract the doctrine of estoppel."
21. Based on the abovementioned conclusions drawn by the Arbitrator on the factual and legal issues canvassed by the rival parties. The Arbitrator passed the following award: "AWARD Keeping in view of the above, based on documents, assessing all the pros and cons, on the basis of equity, justice and good conscience, I pass the following 'AWARD':
a) The agreement dt. 13.11.92 between the Plaintiff and Defendant no. 1 is invalid, void and incomplete and
b) The relevant resolution dt. 14.2.93 (Agenda no. 1) of the Managing Committee of the Defendant no. 2 is quashed and;
c) The Defendant no. 2 is directed to ensure and conform that the plaintiff gets the possession of flat no. 5D with garage space with immediate effect and issue share certificate in her name immediately and
d) Any other action if any taken by any authority on and after 13.11.92 affecting the membership of the Plaintiff in any manner whatever is also quashed. The above Judgment and Award have been given on Pronouncement before the parties present."
22. Dissatisfied with the award rendered by the Tribunal on 5.2.1999,Kalpana Mukherjee preferred an appeal bearing no. 14 of 1999 before the West Bengal Co-operative Tribunal (hereinafter referred to as the Co-operative Tribunal). The Society (defendant no. 2, before the Arbitrator)preferred a separate appeal bearing no. 29 of 1999, to assail the award of the Arbitrator dated 5.2.1999. While dwelling upon the controversy between the parties, the Co-operative Tribunal considered it appropriate to highlight the social relationship and affinity between the parties. According to the Cooperative Tribunal, the relationship between the parties had an essential bearing, to an effective determination of the controversy.
Insofar as the instant aspect of the matter is concerned, rather than re-narrating the position taken into consideration, we consider it more appropriate to extract hereunder the narration recorded by the Co-operative Tribunal itself. The same is accordingly reproduced hereunder:- "For proper appreciate of evidence it is proper to introduce the parties. P.W. Chowdhury, the respondent no. 1 in both the appeals is a spinster and now aged 50+. She is a graduate. She studies in Calcutta and other places. She is an exponent to Bharat Natyam and performs dance at many places of India. For a pretty long time she has been residing at Bombay. Smt. Bani Roy is her sister. B. Roy's husband Mr. H.P. Roy is a wealthy person in Bombay. P. Chowdhury has been living in the family of Mr. H.P. Roy since the put up herself in Bombay. Partha Mukherjee is the son-in-law of H.P. Roy. K. Mukherjee who is the appellant in appeal no. 14/1999 is the mother of Partha Mukherjee. K. Mukherjee retired from service in the National Library, Calcutta in 1994.
While in service, she would stay in the Govt. accommodation at Balvediare Road, Alipur. Partha Mukherjee, Son of K. Mukherjee is an Engineer from I.I.T., Kharagpur and obtained M.B.A. from Ahmedabad and at the material time worked as Sales Manager/Regional Manager of Colgate Palmolive Ltd. in Bombay, Calcutta and other places. Partha Mukheree married Sova Mukherjee, who was the daughter of H.P. Roy of Bombay. P. Chowdhury, her sister Bani, H.P. Roy, Partha and Sova, all lived together for a prolonged period of time in the house of H.P. Roy at Bombay. Partha married Sova sometimes in 1987 and little after marriage, he and Sova started living in the house of H.P. Roy.
Evidence has it to say that the relationship of Pratima with Sova Rinki is, as Pratima herself says, "like my daughter". Similarly, the evidence of Pratima runs that after marriage, her relationship with Partha was "like my son". In 1992, Partha worked for Palmolive Co. Ltd. in Bombay and while working there he, as we have earlier observed, would stay in the house of H.P. Roy. In January, 1992, Pratima was allotted a flat being no. 5B at 48E, Gariahat Road, Calcutta-19 belonging to the society. The said flat was originally allotted to Smt. Indrani Bhattacharya and the said Smt. Indrani Bhattacharya having transferred the flat to Smt. P. Chowdhury, the latter came to be an allottee of that flat, but P. Chowdhury did not reside there at all. In March/April, 1992, Partha was transferred from Bombay to Calcutta and needed an accommodation. Colgate Palmolive Co. Ltd., was required to arrange accommodation for its officers.
As Pratima and Partha became very closer and Pratima treated Partha like her son, Partha put up himself in the flat of Pratima in April, 1992 and it was the Colgate Palmolive Co. Ltd., which by virtue of an agreement for license with Pratima used to pay Rs.5000/- per month as rent to Pratima. These are all facts admitted. We see that the relationship amongst Pratima, Partha and Kalpana grew very closer because of Partha marrying the daughter of the sister of Pratima. This background has to be borne in mind while appreciating the evidence on record."Having traced the relationship between the parties, as has been recorded hereinabove, the Co-operative Tribunal was of the view, that the entire approach of the Arbitrator was erroneous, as the Arbitrator had treated Pratima Chowdhury as a pardanashin lady. The above inference, drawn by the Co-operative Tribunal, is also being extracted hereunder:-
"The entire approach of the Ld. Arbitrator seemed to have gone into the fashion as if the respondent no. 1 P. Chowdhury was a pardanasin lady, that she was unaware of the documents she was executing that it was Partha who managed to get all the documents executed by Pratima so as to obtain transfer of the flat in the name of his mother Kalpana Mukherjee. Let it be recorded here at the outset that P. Chowdhury, having regard to her status, education and wealth cannot be allowed to take the benefit of what a pardanasin woman is entitled to on two-fold grounds; firstly, she is highly education (illegible) and a literate woman and secondly, the pleading of Pratima Chowdhury as we get from plaint does not make out such a case.
"Just in the manner in which we have recorded the conclusions drawn by the Co-operative Arbitrator, highlighting each individual aspect taken into consideration, we will also endeavour to similarly summarize the conclusions drawn by the Co-operative Tribunal on different aspects of the matter. The above conclusions are being recorded hereunder:-
i) The Co-operative Tribunal was of the view, that the determination rendered by the Arbitrator was erroneous on account of the fact that the Arbitrator did not take into consideration a letter of vital importance to the controversy. In this behalf, the Co-operative Tribunal examined the letter dated 29.6.1992, which Pratima Chowdhury had written to the Society, wherein she had indicated that due to her indifferent health, she was not in a position to visit Calcutta in the immediate future. She accordingly requested the Society to transfer her flat to "my nominee Kalpana Mukherjee, a close relative of mine".
In the above letter Pratima Chowdhury had also stated, that Kalpana Mukherjee was already occupying the flat, and was staying in it with her son (Partha Mukheree), and her daughter-in-law (Sova Mukherjee). She accordingly requested the Society, that for the maintenance of the flat, charges payable should be recovered from the residents of the flat. It would be relevant to mention, that Pratima Chowdhury had accepted having written the above letter (in the rejoinder filed by her before the Arbitrator).
Despite the above Pratima Chowdhury had explained, that the letter dated 29.6.1992 had been signed by her at the instance of Partha Mukherjee. According to the Co-operative Tribunal, the above letter dated 29.6.1992 written by Pratima Chowdhury on her letterhead from Bombay, demolished the entire case set up by her. Primarily on the basis of the said letter dated 29.6.1992 the Co-operative Tribunal concluded, that the factual inferences recorded by the Arbitrator without reference to the above letter, were not justified. It came to be expressly concluded by the Co-operative Tribunal, that motives attributed to Partha Mukherjee were clearly unjustified.
ii) According to the Co-operative Tribunal, after having written the above letter dated 29.6.1992, Pratima Chowdhury wrote two other letters dated 11.11.1992 and 13.11.1992. On the basis of the above letters, flat no. 5D was transferred by the Society, to the name of Kalpana Mukherjee, consequent upon the approval of the Deputy Registrar, Co- operative Societies. In the opinion of the Co-operative Tribunal, Pratima Chowdhury did not assail the action of the Society in transferring flat no. 5D to Kalpana Mukherjee till February, 1995.
According to the Co-operative Tribunal, the challenge to the transfer of the above flat in the name of Kalpana Mukherjee, was raised only after a marital discord had developed between Partha Mukherjee and his wife Sova Mukherjee. On account of the above discord, Partha Mukhrjee left the company of the family of his father-in-law (H.P. Roy). It was only thereupon, that Pratima Chowdhury assailed the transfer of the flat (from her name, to the name of Kalpana Mukherjee). According to the Co-operative Tribunal, the Arbitrator overlooked the above extremely relevant factual position and accordingly erred in drawing his conclusions.
iii) Insofar as the document dated 13.11.1992 is concerned, the Co- operative Tribunal having examined it, recorded that the same was executed by Pratima Chowdhury and Kalpana Mukherjee (both as executants), which was attested by H.P. Roy (father-in-law of Partha Mukherjee) and which was also sworn before a notary. The Co-operative Tribunal also observed, that the aforesaid document had been executed on a non-judicial stamp paper of Rs.40/-. The above document in its text recorded, that Pratima Chowdhury had transferred the possession, right, title and interest of flat no. 5D in favour of Kalpana Mukherjee (the nominee/transferee).
The reason for the aforesaid transfer was indicated in document dated 29.6.1992. It was mentioned, that on account of her (Pratima Chowdhury's) indifferent health and on account of having decided to permanently settle in Bombay, she had agreed to transfer the flat no. 5D in favour of Kalpana Mukherjee. It was also duly recorded in the above document, that possession of flat no. 5D had already been handed over to Kalpana Mukhrjee. It was also pointed out, that Kalpana Mukherjee had already applied for membership of the Society, where after, she would be entitled to all rights and privileges over flat no. 5D in terms of the bye-laws of the Society. According to the Co-operative Tribunal, Pratima Chowdhury did not deny execution of document dated 13.11.1992.
As per the Co-operative Tribunal, the submission of Pratima Chowdhury about having signed a blank paper, on which Partha Mukherjee had executed the document dated 13.11.1992, was not acceptable. The Co-operative Tribunal was of the view, that Pratima Chowdhury having admitted her signatures on the document dated 13.11.1992, it was not open to her to deny the execution thereof. For the same reason, the Co-operative Tribunal rejected the contention advanced on behalf of Pratima Chowdhury, that she had never appeared before the notary at Calcutta because she had never gone to Calcutta during the period when the documents dated 11.11.1992 and 13.11.1992 were executed. The Co-operative Tribunal felt compelled to record the aforesaid conclusion in the following words:
"Regardless of whether the document called agreement dated 13.11.1992 is legal or not, the fact remains that the document was executed by the transferor and the transferee, and it could not be denied that long before the agreement was executed, possession of the flat was delivered way back in March, 1992.". Therefore, all the findings recorded by the Arbitrator in respect of the document dated 13.11.1992 were not accepted for the above reasons.
iv) While dealing with the documents dated 29.6.1992, 11.11.1992 and 13.11.1992, the Co-operative Tribunal expressed disbelief at the determination of the Arbitrator to the effect, that Pratima Chowdhury had no intention to transfer her membership and her flat bearing no. 5D to Kalpana Mukherjee. According to the Co-operative Tribunal, the question whether monetary consideration passed from Kalpana Mukherjee to Pratima Chowdhury or not, was a different issue, however, the letters dated 29.6.1992, 11.11.1992 and 13.11.1992 clearly expressed the intention of Pratima Chowdhury to transfer flat no. 5D in favour of her nominee Kalpana Mukherjee. The Co-operative Tribunal was also of the view, that the Arbitrator was unjustified in observing, that the above letters were drafted by Partha Mukherjee, or that, Partha Mukheree prevailed over Kalpana Mukherjee to execute the above letters. According to the Co-operative Tribunal, neither the evidence available on the records of the case, nor the circumstances of the case justified any such inference.
v) While dealing with the issue of consideration, which had passed from Kalpana Mukherjee to Pratima Chowdhury on account of transfer of flat no. 5D, the Co-operative Tribunal expressed, that the Arbitrator appeared to have been of the view that since in the letter dated 11.11.1992 it was stated, that no monetary transaction was involved, there could be no sale, and consequently, when there was no sale, there could be no transfer. The Co-operative Tribunal expressed the view, that sale was not the only mode of transfer. Relying on the letter dated 11.11.1992 the Co-operative Tribunal felt, that it could not be conclusively held, that Pratima Chowdhury had no intention to transfer flat no. 5D in the name of Kalpana Mukherjee. In fact, according to the Co-operative Tribunal, the issue of passing of consideration and the issue of transfer of the property were two independent issues.
The said issues, according to the Tribunal, had to be determined as per the totality of the circumstances of the case. On the instant aspect of the matter the Co-operative Tribunal expressed the view, that the rival parties were tied up by a matrimonial relationship, inasmuch as, the niece (Sova Mukherjee) of Pratima Chowdhury was the cementing factor, of their relationship. Accordingly, whether or not consideration had passed between the parties, could not be considered as a decisive factor. In fact, the Co-operative Tribunal was pleased to further conclude, "Even assuming for the sake of argument that no monetary transaction was involved, the factum of transfer is not abrogated thereby".
According to the Co- operative Tribunal, the provisions of the West Bengal Co-operative Societies Act, and the Rules framed there under, do not mandate, that transfer could only be made by way of sale. Keeping in view the closeness of the relationship, which is existed between the parties, according to the Co-operative Tribunal, the issue of paramount importance was not the receipt of monetary consideration, the issue of paramount importance was only "... to accommodate the plaintiff's niece Sova and her husband Partha, that was uppermost in the mind of the plaintiff..." Referring to the facts of the present case, the Co- operative Tribunal held, that consistent with the case of Pratima Chowdhury based on an oral agreement, Partha Mukherjee transferred shares of different companies "... worth Rs.4,29,000/- in favour of the plaintiff on 6.12.1994 by way of consideration of the apartment...".
It is necessary to notice the observations made by the Co-operative Tribunal on the instant aspect of the matter. The same are accordingly reproduced in the words of the Co-operative Tribunal: "One may not believe the reality of oral agreement so as to determine the price and of payment thereto by transfer of shares of different companies in favour of the respondent no. 1. But if it appears from the documents which show that in the latter part of the year 1994, shares worth Rs.4,29,000/- were transferred in favour of P. Chowdhury and if no convincing evidence is forthcoming as to payment of that money for different purpose or for different reason then one is to believe the passing of consideration price, and the passing of consideration price when proved would virtually prove the alleged oral agreement to that effect."
vi) The Co-operative Tribunal also examined the rival contentions of the parties in respect of the place where the documents in question were executed. It was pointed out, that the evidence produced by Pratima Chowdhury to the effect, that she had signed the documents in Bombay, could not be accepted. Likewise, according to the Co-operative Tribunal, the witnesses produced by Pratima Chowdhury on the above issue, were not reliable. According to the Co-operative Tribunal, when the notary who was an Advocate stated on oath, that the documents were executed in Calcutta before him, it was not possible to give credence to the statement of Pratima Chowdhury or the witnesses produced by her. According to the Co-operative Tribunal, it needed to be kept in mind even, insofar as the instant aspect of the matter was concerned, that Pratima Chowdhary had raised a dispute in respect of the transfer of flat no. 5D only after a marital discord had developed between Partha Mukherjee and Sova Mukherjee.
vii) According to the Co-operative Tribunal "the question as to why Kalpana Mukherjee was not made a nominee in January, 1992 when she was put in possession of the flat, lies in the fact that since 1987, Kalpana Mukherjee's son Partha Mukherjee had been residing in Bombay with his father in law H.P. Roy and Pratima Chowdhury. According to the Co- operative Tribunal, the Arbitrator recorded a useless reasoning, that the nomination in favour of Kalpana Mukherjee was not acceptable. Referring to Sections 79 and 80 of the West Bengal Co-Operative Societies Act, the Co-operative Tribunal expressed the view, that it was not compulsory that transfer of nomination could only be in favour of a member of the family of the person making the nomination.
According to the Co-operative Tribunal, the letters/documents dated 29.6.1992, 11.11.1992 and 13.11.1992 were sufficient proof of the nomination by Pratima Chowdhury in favour of Kalpana Mukherjee. It was also pointed out, that the Society had accepted the above nomination, which was approved by the Deputy Registrar, Co-Operative Societies. It was accordingly concluded by the Co-operative Tribunal, that in such a situation, no separate letter giving consent to the transfer was required.
viii) Another interesting aspect of the matter dealt with by the Co- operative Tribunal was based on the principle of estoppel. Rather than expressing the observations and conclusions drawn by the Co- operative Tribunal in our words, we consider it just and appropriate to narrate the findings recorded by the Co-operative Tribunal by extracting its observations. The same are accordingly reproduced hereunder:- "Section 115 of the Evidence Act provides that "when one person has by his declaration act or commission, intentionally causes or permits another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in the suit or proceeding between herself and such person or his representative shall be allowed in the suit or proceeding between herself and such person or his representation, to deny the truth of that thing". The following facts are very much present to invoke the doctrine.
a) Fraud, undue influence (illegible) and misrepresentation has not been proved;
b) (illegible)
c) (Illegible)
d) Partha was in need of accommodation in Calcutta;
e) Long before transfer Kalpana was already made a nominee in respect of the flat in question;
f) Unquestionably two letters dated 19.6.1992 and 13.11.1992 are there addressed by Pratima to the society clearly asking for transfer of the flat in favour of Kalpana;
g) Possession was delivered pursuant to those letters and agreement dated 13.11.1992;
h) Lease and license agreement with Colgate Palmolive Ltd., legally cannot destroy the factum of transfer;
i) Partha and Kalpana are led to believe about the completion of transfer;
j) Under the law it (illegible) required to be executed and registered under the T.P. Act and the I.R. Act;
k) Pratima writes to CESC to henceforth collect all charges from Kalpana;
l) Pratima slept a slumber after the signing of the agreement dated 13.11.1992 till April, 1993. These facts are to our mind sufficient to invoke the doctrine of estoppel. When society acted upon letters of the plaintiff/respondent no. 1 and transfer was effected, the respondent no. 1 is estopped from challenging her stand."
ix) It was argued before the Co-operative Tribunal, that when the lease and license agreement came to an end, Partha Mukherjee wrote a letter to Colgate Palmolive India Limited informing it of the termination of the lease and license agreement by asserting, that "Landlady refunded back the security deposit of Rs.60,000/-". Factually, Partha Mukherjee had deposited the above amount of Rs.60,000/-, in the Calcutta office of Colgate Palmolive (India) Limited. It was argued before the Co-operative Tribunal, that the use of the expression "landlady" by Partha Mukherjee, was indicative of the fact that the transfer of flat no. 5D had actually not taken place.
According to the Co-operative Tribunal, the aforesaid argument was not acceptable because in the eyes of Colgate Palmolive (India) Limited, Pratima Chowdhury was a landlady and accordingly it was not required that Partha Mukherjee should inform Colgate Palmolive (India) Limited, that Pratima Chowdhury had transferred flat no. 5D to the name of his mother Kalpana Mukherjee. Based on the aforesaid findings recorded by the Co-operative Tribunal, both the appeals were allowed. The impugned award passed by the Tribunal dated5.2.1999 in Dispute Case No. 29/RCS of 1995-96 was set aside. Accordingly, the dispute raised by Pratima Chowdhury was dismissed.
23. Dissatisfied with the common order passed by the Co-operative Tribunal dated 16.5.2002, vide which Appeal nos. 14 of 1999 and 29 of 1999were disposed of, the petitioner invoked the civil revisional jurisdiction of the High Court at Calcutta (hereinafter referred to as, the High Court). During the course of deliberations before the High Court, Pratima Chowdhury assailed the findings recorded by the Co-operative Tribunal on various aspects of the matter. The High Court in its deliberations traced the sequence of facts in the background of the facts as were examined by the Arbitrator, as also, the Co-operative Tribunal. No new facts were taken into consideration. The High Court adjudicated upon the matter vide an order dated 14.2.2006, whereby Civil Order nos. 3039 and 3040 of 2002were jointly disposed of. The different perspectives and angles within the framework of which the High Court examined the controversy, are being briefly narrated hereunder:-
(i) The High Court excluded various facts taken into consideration by the Arbitrator. For excluding certain facts from consideration, the view of the High Court was, that the factual position introduced by Pratima Chowdhury by filing a rejoinder before the Arbitrator, could not be taken into consideration. The consideration of the High Court was recorded in the impugned order dated 14.2.2006, as under:- "After service of copy of the written statement, the plaintiff before the learned Arbitrator filed a rejoinder thereby attempting to introduce certain facts. But t
