Bombay High Court
Tirupati Ginning And Pressing Factory ... vs Balaji Ginning And Pressing Industry, A ... on 9 April, 2008
Author: A.H. Joshi
Bench: A.H. Joshi
JUDGMENT A.H. Joshi, J.
1. Heard learned Advocate for the petitioner. None for respondents.
2. Petitioner is an auction purchaser in the auction conducted by respondent No. 2 furtherance to recovery of dues of the respondent No. 3 from the respondent No. 1.
3. Admittedly, auction purchaser-petitioner has been put in possession of property.
4. Respondent No. 1 herein filed a Civil Suit claiming declaratory relief that the defendants are not entitled to act furtherance to provisions of the Maharashtra Co-operative Societies Act, 1960 and consequential reliefs.
5. Petitioner and other defendants raised objection in the suit filed by the respondent No. 1 on the ground of bar under Section 163 and want of notice under Section 164 of the Maharashtra Co-operative Societies Act, in view that the dispute, subject-matter, touches the business of Co-operative Society as defined under Section 91 of the Maharashtra Cooperative Societies Act.
6. The learned Trial Judge rejected the application and hence the petitioner is before this Court.
7. On perusal of impugned order, it is seen that the learned Trial Judge was impressed by the language contained in the suit, namely that the foundation of the suit was that the actions of the Bank as well as of the Asstt. Registrar, Co-operative Societies, and Recovery Officer were nullity. The Court then found that the bar created under a statute would never operate as a bar on the jurisdiction of a Civil Court when the challenge is on the ground of nullity.
8. The prayers and reliefs sought pose to be innocuous, and as if do not touch upon the business of Society.
9. Averments in the suit, however, clearly reveal real posture that the injunction sought has a direct nexus with the loan transaction between the plaintiff and the defendant No. 2-Bank, for recovery whereof, the defendant No. 1 was acting.
10. Record shows that:
[a] The Recovery Certificate was applied for by the defendant No. 2-Bank under Section 101 of the Maharashtra Co-operative Societies Act on...27th June, 2002.
[b] The Certificate of Recovery was issued on...9th August, 2002.
[c] The Bank got itself registered under Multi-State Co-operative Societies Act, 2002 after said Act came into force on 19th August, 2002.
[d] It is nowhere disputed that the proceedings for recovery under Section 101 of the Maharashtra Co-operative Societies Act were initiated and were pending.
11. Thus, in any case, the recovery was being made as per the provisions of the Maharashtra Co-operative Societies Act according to law as then applicable.
12. In view of re-registration of the defendant No. 2-Bank, the plaintiff wants to take advantage of change, and urges that the Recovery Certificate granted in its favour is not executable and for that purpose, seeks a wholesome relief that the defendants should not act furtherance to the provisions of the Maharashtra Co-operative Societies Act.
13. In the present case, when admittedly, it is duly demonstrated that the dispute touches the business of Society, a suit without notice, as contemplated by Section 164 of the Maharashtra Co-operative Societies Act, is barred.
14. The Trial Court has fallen prey to the folly created by plaintiff by suppressing the crucial dates and due to the pleadings crafted with gimmicks. The plaintiff has, thus, succeeded in confusing the Trial Court and misdirecting it to feel that once a plea of nullity of any proceedings is raised, even the question of notice under Section 164 would become irrelevant.
15. Whatever be the foundation of claim, namely whether the plaintiff is claiming annulment of Recovery Certificate in a circuitous manner, what he intends to do is seeking a declaration as to a Co-operative Society's title to recover its dues on account of advance made furtherance to the business thereof.
16. The plaintiff seems to have realized the difficulties which would have become vivid had he prayed directly that he is seeking to restrain the issuance of Recovery Certificate. He has, therefore, camouflaged the prayers, and urged that the Bank should not act under the provisions of the Maharashtra Cooperative Societies Act. Such innocuously presented prayer does not even present the tip of iceberg beneath the claim and prayers. The Court should have rather perceived, by all senses, particularly upon discreet reading of the plaint, as to what was the crux of the matter and real prayer and the claim, and not to get misled by the gimmicks.
17. In the result, it is a clear case where the suit directly touched the business of Society. Question of bar apart, the suit could not have been entertained in the absence of compliance of Section 164 of the Maharashtra Co-operative Societies Act. The application of the defendant No. 3-present petitioner, objecting the maintainability of the suit, which was liable to be allowed, has rather been wrongly rejected.
18. In the result, petitioner has made out a case for making the Rule absolute and for allowing Exh. 14.
19. Regular Civil Suit No. 302 of 2003 filed by the present respondent No. 1 liable to is dismissed, and is hereby dismissed.
20. The petitioner shall be entitled to cost which is quantified to a sum of Rs. 5,000-00 [rupees five thousand only] from the plaintiff-Respondent No. 1 herein.