Madhya Pradesh High Court
Shri Bhanushali Housing Co-Operative ... vs Mangilal on 22 March, 2012
Writ Petition No.15195/2011
22.3.2012
Shri R. N. Singh, senior advocate with Shri Hitendra
Singh for the petitioner.
Shri D. K. Sharma, learned counsel for the respondent
Nos.1 to 5.
Heard.
The petitioner is a Cooperative Housing Society. As such society, the petitioner is engaged in acquiring land, dividing the same into plots and distributing the same amongst its members. For acquiring land the petitioner entered into an agreement for purchasing certain land from the private respondents in the year 1987. In 1998, the petitioner-society referred a dispute between the society and the private respondents (who were not members of the society), under Section 64 of the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as 'the Act') before the Deputy Registrar of Cooperative Societies.
The relief sought was of specific performance of the agreement for sale between the society and third persons who were not present or past members of the society. The relief of injunction and declaration was also sought.
The Dy. Registrar by his order dated 1.3.2004 decreed the specific performance. The private respondents claimed that it was an ex parte decree about which they came to know when execution was put into motion. The appeal by the private respondents was also dismissed. However, the second appeal preferred by them was allowed by the impugned order of the Cooperative Tribunal. The Tribunal held by its impugned order dated 30.8.2011 that the dispute between the society and non-member in the nature of specific performance of an agreement for sale was not covered by Section 64 of the Act and the proper remedy for such relief was to institute a normal civil suit for specific performance.
We have heard both sides.
The petitioner relies upon Section 64 (1) (c) and also relies upon Section 64(3) of the Act. The aforesaid provisions are reproduced below for ready reference:
"64. Disputes.-(1) Notwithstanding anything contained in any other law for the time being in force, [any dispute touching the constitution, management or business, or the liquidation of a society shall be referred to the Registrar] by any of the parties to the dispute if the parties thereto are among the following:
(a) xxx xxx xxx xxx
(b) xxx xxx xxx xxx
(c) a person other than a member of the
society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person;
(d) xxx xxx xxx xxx
(2) xxx xxx xxx xxx
(3) if any question arising whether a
dispute referred to the Registrar is a dispute, the decision thereon the Registrar shall be final and shall not be called in question in any Court."
It has been argued by the learned counsel for the petitioner that under Section 64(3) of the Act, the decision of the Registrar is final, and therefore once the Dy. Registrar had decreed the specific performance it should be deemed that he has decided that the dispute was covered by Section 64 of the Act, and that decision could not have been upset by the Cooperative Tribunal because of the bar contained in Section 64(3) of the Act.
The contention desrves to be rejected straightaway. The express words of Section 64(3), leave no room for doubt that such decision cannot be questioned in independent proceedings in the form of civil suit. It does not by any stretch of imagination mean that the decision of the Joint Registrar on the question that the dispute falls within Section 64 of the Act cannot even be questioned in appeal under that same Act.
So far as the first question is concerned, the petitioner relies upon the following ingredients:
(i) That, it is a dispute touching the business of the society,
(ii) It is between the society and a person who is other than a member of the society and,
(iii) The society has business transactions with such non-member.
We do not agree. The words used in the statute are person with whom the society has "business transactions". The use of the plural word "transactions" and the scheme and context suggest that there should be a business relationship on a regular basis during which the dispute touching the business of the society should arise. One isolated transaction by way of single agreement for sale, would not amount to having "business transactions", and therefore would not be covered under the said statutory provisions.
In Deecan Merchants Cooperative Bank Ltd., Vs. M/ s. Dalichand Jugaraj Jain, AIR 1969 SCC 1320, it has been held by the Supreme Court that the word "business" of the society has been used in the narrower sense.
In the present case, entering into the agreement for sale may be incidental, but is not the "business of the society". There is a difference between acquiring land and entering into the agreement for purchase of the land. The wider or other interpretation would mean that if the society were to take loan from the bank for the purpose of acquiring land, a dispute regarding repayment of the loan between the society and bank could be dragged under Section 64 of the Act.
In the case of Marine Times Publications Pvt. Ltd., Vs. Shriram Transport and Finance Co. Ltd., and another, AIR 1991 SCC 626, it has been held directly by the Supreme Court that in a suit for specific performance of an agreement where the main relief is for a decree of specific performance and other reliefs are ancillary, the suit would not be maintainable in the Cooperative Court.
It may also be mentioned here that the reliefs No.(c) &
(d) in the claim before the Dy. Registrar as filed by the petitioner itself were for permanent injunction and declaration respectively. In the case of Kusum Verma Vs. Pritam Singh Gulati, reported in 1998 (1) MPLJ 578 and relied upon by the learned counsel for the petitioner himself, a learned Single Judge of this Court has held in paragraph 26 of that law report that decree of permanent prohibitory injunction and declaration could not have been granted in any forum provided under the M.P. Cooperative Societies Act. The reliance placed on paragraph 23 to 25 of the said law report, therefore does not help the petitioner, and in any case the observations of the learned single Judge in paragraphs 23 to 25 are only obiter as they were not necessary for deciding the case.
Similarly, the reliance placed by the learned counsel for the petitioner upon the case of O. N. Bhatnagar Vs. Smt. Rukibai Narsindas and others, AIR 1982 SCC 1097 by way of indirect reference is also not material in view of the direct decision of the Supreme Court in the case of Marine Times Publications Pvt. Ltd. (supra).
In these circumstances, we are in agreement with the view taken by the Tribunal that the proper remedy for the petitioner was a civil Suit, and not under Section 64 of the Act in respect of the relief claimed by the petitioner.
Accordingly, the writ petition is dismissed.
(Sushil Harkauli) (Smt.Vimla Jain)
Acting Chief Justice Judge
snb/-