Bombay High Court
Buldana Urban Multi-State Cooperative ... vs Sau. Neeta Prafulla Jaiswal And Others on 14 January, 2016
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 cra20.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.20 OF 2014
Buldana Urban Multi-State Cooperative
Credit Society Ltd.,Buldana through its
Manager, Main Office, Buldana.
.... APPLICANT.
ig // VERSUS //
1. Sau. Neeta Prafulla Jaiswal,
Aged about 35 years, Occu.: Household
Duties, R/o. Tekadi Road, Near Sandhiguru
Sangat, Sadar, Nagpur, Tq.& Distt. Nagpur.
2. Hiralal Maganlal Jaiswal,
Aged about 65 years, Occu.: Agriculturist,
3. Sunil Hiralal Jaiswal,
Aged about 40 years, Occu.: Agriculturist,
4. Sanjay Hiralal Jaiswal,
Aged about 43 years, Occu.: Agriculturist,
5. Smt. Shardabai Hiralal Jaiswal,
Aged about 60 years, Occu.: Household duties,
6. Sau.Sangita Sanjay Jaiswal,
Aged about 40 years, Occu.: Agriculturist,
Nos. 2 to 6 R/o. Chandol,
Tq. & Distt. Buldana.
.... RESPONDENTS
.
______________________________________________________________
Shri R.L.Khapre, Advocate for Applicant.
Ms Radhika Bajaj, Advocate for Non-applicant No.1.
None for Non-applicant Nos. 2 to 6.
______________________________________________________________
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Judgment 2 cra20.14.odt
CORAM : Z.A.HAQ, J.
DATED : JANUARY 14, 2016.
ORAL JUDGMENT :
Heard the learned advocates for the applicant and Non-
applicant No.1. None appears for the other non-applicants. The applicant/ defendant No.5 has filed this application challenging the order passed by the trial Court rejecting the application filed by it under Order VII Rule 11 of the Code of Civil Procedure.
2. The non-applicant No.1/plaintiff has filed civil suit praying for decree in the following terms :
"1. The Hon'ble Court be pleased to decree the suit of the plaintiff to direct the defendants to partition the suit property by metes and bounds and to hand over the separate possession of the 1/5th share of the plaintiff to her forth with, or to partition the suit property and hand over separate possession through Court.
2. To order to prohibit the defendants from alienating the suit property in future or creating any third party interest over the same to the prejudice of the plaintiff.
To grant costs and to grant any other relief which this Hon'ble Court deems fit in the interest of justice."::: Uploaded on - 21/01/2016 ::: Downloaded on - 31/07/2016 01:02:51 :::
Judgment 3 cra20.14.odt In this civil suit the applicant/ defendant No.5 filed an application (Ex.14) under Order VII Rule 11 of the Code of Civil Procedure contending that the civil suit is liable to be dismissed on the ground that the mandatory notice under Section 115 of the Multi-State Co-operative Societies Act, 2002 is not issued by the plaintiff before filing the suit.
It is further contended that the suit is liable to be dismissed as it is undervalued and proper court fee is not paid. The defendant No.5 raised ground that the suit is liable to be dismissed as the suit is filed after the period of limitation prescribed by Article 58 of the Limitation Act.
3. The learned trial Judge considered the submissions of the parties and rejected the application recording that the claim made in the civil suit is not of such a nature that it can be said that it touches the business of defendant No.5-bank and therefore, notice as required by Section 115 of the Multi-State Co-operative Societies Act, 2002 was not required to be given before filing the civil suit.::: Uploaded on - 21/01/2016 ::: Downloaded on - 31/07/2016 01:02:51 :::
Judgment 4 cra20.14.odt
4. The challenge raised by the defendant No.5 on the ground of limitation has been negatived recording that it is a mixed question of law and fact and will have to be considered after the evidence is recorded. The challenge raised by the defendant No.5 on the ground that the suit is undervalued is also negatived by the learned trial Judge observing that the plaintiff has not prayed for declaration that the sale-
deed is null and void and therefore, the court fee is not required to be paid on the basis of the valuation shown in the sale-deed.
The applicant has challenged the order rejecting the application (Exh.14) in this revision, however, the challenge is restricted to the rejection of the contention that the suit is not maintainable as the notice under Section 115 of the Multi-State Co-
operative Societies Act, 2002 is not given.
5. The learned advocate for the applicant has submitted that the plaintiff has impleaded the Bank as defendant No.5 and has prayed for decree for partition and possession of her share in the suit property which is sold in auction by the defendant No.5-Bank. It is submitted that if the claim as made by the plaintiff is allowed it will be touching the business of the society and therefore, notice under Section 115 of ::: Uploaded on - 21/01/2016 ::: Downloaded on - 31/07/2016 01:02:51 ::: Judgment 5 cra20.14.odt the Multi-State Co-operative Societies Act, 2002 was necessary before filing of the civil suit. In support of the submission, reliance is placed on the following judgments :
i) Judgment given by the Hon'ble Supreme Court in the case of Deccan Merchants Co-operative Bank Vs. Dalichand Jugraj Jain, reported in 1968 DGLS (Soft.) 235,
ii) Judgment given by this Court in the case of Devgiri Nagari Sahakari Bank Ltd. Vs. Zubidabegum Asadulla Khan, reported in 2013(2) Bom.C.R. 675;
iii) Judgment given by this Court in the case of Sahara India Commercial Corporation Ltd. Vs. B. Jeejeebhoy Vakharia & Associates, reported in 2008 B.C.I. 158.
6. Ms Radhika Bajaj learned advocate for the non-applicant has submitted that the suit property is already sold by the defendant No.5-Bank in auction and the ownership and possession of the suit property is not with the defendant No.5-Bank. It is submitted that the claim made by the plaintiff is not in respect of anything touching the business of the Bank.
7. On examining the documents placed on the record of the revision, it is noticed that the pleadings in paragraph No.6 of the plaint show that the plaintiff has claimed partition and separate possession in respect of her share in the agricultural land bearing Gut No. 219, admeasuring 13 H 35 R and house property situated at Chandol, Tahsil ::: Uploaded on - 21/01/2016 ::: Downloaded on - 31/07/2016 01:02:51 ::: Judgment 6 cra20.14.odt and District : Buldana. In paragraph 10 of the plaint it is recorded that the defendant No.3-Sanjay has sold 2 H 2 R land out of Gut No.219 to the defendant No.5. The applicant has not impleaded the purchaser who has purchased the land admeasuring 2 H 2 R in auction conducted by the applicant-Bank. In these circumstances, it is clear that the claim of the plaintiff is not against the Bank and therefore, it cannot be said that the suit filed by the non-applicant No.1/ plaintiff is in respect of any act touching the constitution, management or business of the society. Consequently, the notice under Section 115 of the Multi-State Co-operative Societies Act, 2002 was not required to be given to the applicant-Bank before filing the civil suit.
10. For the above reasons, I find that the impugned order cannot be faulted with. It cannot be said that the learned trial Judge has committed any patent illegality or irregularity or has failed to exercise the jurisdiction vested in him which necessitates interference by this Court in revisional jurisdiction.
The civil revision application is dismissed. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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