Bombay High Court
Mr. Sohansingh Dhami vs The Chembur Sursangeet Co-Operative ... on 23 September, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:37673
WP -2775-15-F21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2775 OF 2015.
Mr. Sohansingh Dhami
Bungalow No.5, Tirath Cooperative
Housing society Ltd.,
Sion Trombay Road, Chembur,
Mumbai 400 071 ...Petitioner.
Versus
1.The Chembur Sursangeet Co-operative
Housing Society Ltd.
Opp. Diamond Garden,
S.T. Road , Chembur,
Mumbai 400 071
2. Mr. Mohansingh Jagat Singh Dhami,
The Chembur Sursangeet Cooperative
Housing Society Ltd.,
Flat No.4, Opp. Diamond Garden,
S. T. Road, Chembur,
Mumbai 400 071 ...Respondents.
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Mr. Gautam Ankhad, Senior Advocate a/w. Ms. Nishtha Gard i/b Ms.
Shruti Tulpule for the Petitioner.
Ms. Anita Bhaktwani for Respondent No.1.
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Ms. Bhavna A. Anklesaria for the Respondent No.2.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : 14th August 2024.
Pronounced on : 23rd September 2024.
JUDGMENT :
1. RULE. Rule made returnable forthwith and taken for final hearing with consent of the parties.
2. The challenge in the present petition is to the order dated 8 th December 2014 passed by the Maharashtra State Co-operative Court in Appeal No.79 of 2013 dismissing the Appeal thereby upholding the order of the Co-operative Court dated 17th April 2013 passed in Dispute No.200 of 2013 by which the Dispute was dismissed on the preliminary objection of jurisdiction, limitation and maintainability.
3. The facts of the case are that the Dispute No 200 of 2013 was filed by present Petitioner before the Co-operative Court under Section 91 of The Maharashtra Co-operative Societies Act, 1960 ("MCS Act"). The case pleaded was that the Disputant is the member of Respondent No.1-Society and Respondent No.2 is brother of the Disputant. Under an agreement dated 25th August 1974, in which agreement the name of Disputant is shown first, the Disputant and rsk 2 of 22 WP -2775-15-F21.doc the Respondent No 2 jointly purchased Flat No.4 of Respondent No.1- Society and one parking space. Without the Disputant submitting any transfer form to the Respondent No 1 Society to permit placing the Respondent No 2 as first purchaser, the Society had transferred the Disputant as purchaser no 2 and transferred the share certificate and flat No.4 in the sole name of Respondent No.2. Despite communication with the Respondent -Society, copies of the relevant share certificate and the agreement dated 25 th August 1974 were not furnished to the Disputant. The jurisdiction clause contends that the dispute touches the management and business of the Society whereby Respondent No.1 Society unauthorisedly changed name of the owner of the flat No.4 and the relevant share certificate. The Disputant sought direction to the Respondent No 1 Society to record name of Disputant as first owner of the flat and parking space and relevant share certificate and for injunction against Respondent No 1 and Respondent No 2 from transferring the suit flat and share certificate and against Respondent No 2 from obstructing the Disputant's possession of the suit flat and parking space.
4. On 10th August 2011 Respondent No.2 filed application before Co-operative Court for framing preliminary issue of jurisdiction, limitation and maintainability. From the order passed by the Co-
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operative Court it appears that the contention of Respondent No 2 was that in arbitration proceedings filed by the Respondent No 2, the Disputant has filed counter claim claiming the suit flat and car parking space and during the pendency of the arbitration proceedings, the present Dispute has been filed. It was contended that the Disputant had filed Suit No 3334 of 2009 before the High Court for partition claiming that the suit flat and car parking space are joint family properties and seeking declaration that the family arrangement cum settlement dated 13th January, 2007 are void.
5. The Petitioner filed his reply to the application admitting the pending litigation and contended that the relief claimed in the Dispute is not overlapping with the other proceedings. The Respondent No 2 filed his rejoinder pointing out that the Disputant has sought relief of injunction before the High Court.
6. The Trial Court framed the issue of jurisdiction, limitation and maintainability and answered the issues against the Petitioner. The Trial Court considered the documents produced on record and held that the dispute is of civil nature and same prayer of injunction is sought before the High Court. On the basis of documents produced on record, the Trial Court held that the suit flat is the absolute property of Respondent No 2. It held that in view of title dispute rsk 4 of 22 WP -2775-15-F21.doc which is pending before the High Court and in arbitration proceedings, the dispute is beyond jurisdiction of Co-operative Court.
7. On issue of limitation, the Trial Court held that the share certificate on and from 25th December, 2005 stands exclusively in name of Respondent No 2 and there is an admitted family arrangement. The dispute was not filed within three years from 25 th December, 2005 and is barred by limitation.
8. On the issue of maintainability, the Trial Court held that differing stands are taken by Disputant in different proceedings and there is not a single document produced to show the Disputant's right title and interest in the suit premises and thus the dispute is not maintainable under Section 91 of MCS Act.
9. As against this Appeal No.79 of 2013 came to be filed before the Appellate Court which came to be dismissed vide judgment dated 8th December 2014. The Appellate Court held that declaration without any consequential relief cannot be maintained and the consequential relief touches the question of title. On issue of limitation, it held in favour of the Petitioner and on maintainability it held that the matter is not relating to management or business of the Society.
10. Heard Mr. Gautam Ankhad, Learned Senior Advocate for the rsk 5 of 22 WP -2775-15-F21.doc Petitioner, Ms. Anita Bhaktwani Learned counsel for Respondent No.1 and Ms. Bhavna A. Anklesaria , Learned counsel for Respondent No.2.
11. Mr. Ankhad, would submit that the parties to the dispute as well as the subject matter of the dispute falls within the class specified under Section 91 of the MCS Act. Pointing out the reliefs claimed in the Dispute he would submit that direction was sought against Respondent No.1-Society to record the name of the Disputant as the first owner of the flat and relevant share certificate and an injunction against Respondent No.2. He submits that the specific pleading is that under the agreement of 25th August 1974, the joint names of Disputant and Respondent No.2 were shown and without any transfer form, the Respondent No.1-Society has transferred the share certificate in the sole name of Respondent No.2 and thus the dispute falls squarely within Section 91 of the Co-operative Societies Act.
12. Pointing out to the findings of the Appellate Court, he would submit that the Appellate Court has held that Co-operative Court cannot go into competing question of title whereas relief claimed by the Petitioner did not seek any declaration of title. He submits that the the challenge in the dispute was to the deletion of name of the Disputant from the share certificate which is referable to the management of the affairs of the Society. He would further point out rsk 6 of 22 WP -2775-15-F21.doc to the reply filed by Respondent No.2 in the present petition stating that in the year 2005 there was an oral family arrangement and the Petitioner has surrendered his right as nominal member in respect of subject flat and car parking. He submits that on the basis of this oral arrangement without any authorisation by the Petitioner, Respondent No.1-Society has deleted the name of the Petitioner. He submits that in the reply, the share certificate is annexed at page 97 which is the earlier share certificate reflecting the name of Petitioner and Respondent No.2 and points out page 99 of the petition whereby the share certificate had been transferred in the sole name of Respondent No.2. He submits that the family settlement which is annexed at page 100 of the affidavit in reply of Respondent No.2 does not speak of the oral agreement entered prior thereto. He submits that the Appellate Court has gone into merits of the family settlement of the year 2005- 2007 while adjudicating the preliminary issue of jurisdiction. In support he would rely on the decision of Hemprabha Co-operative Housing Society Ltd. vs. Kishore C. Waghela and Ors., 2024 SCC Online Bom 2334.
13. Per contra, Ms. Anklesaria, would submit that the Trial Court has specifically held that dispute is not tenable in view of the fact that there are three different proceedings filed by the Disputant in three rsk 7 of 22 WP -2775-15-F21.doc different Courts in respect of the same subject matter. She further points out the observations of the Trial Court that there is not a single document produced by the Disputant to show that the Disputant has any right, title and interest in the subject flat and car parking. She submits that that as Civil Court is seized of the title dispute no concurrent jurisdiction can be exercised by the Co-operative Court. Pointing out to the prayers in the Dispute she submits that there is no relief seeking declaration that the act of the Society in deleting the name of the Petitioner from the share certificate is void or illegal. She submits that the issue raised in the present case is a title dispute which cannot be adjudicated by the Co-operative Court.
14. She would further submit that the Appellate Court has held that it is expected of the Disputant to seek declaration that the act of Society is illegal and the consequential reliefs are touching the question of title. She would further point out that as relief of possession was sought, the Appellate Court has declined to exercise jurisdiction. She would further submit that under the proviso to Section 91 the issue as regards admission to membership by Society is outside the jurisdiction of the Co-operative Court. She would further submit that under Section 93 (2) of MCS Act, the Co-operative Court has the power to suspend any proceedings if the issue involves question to be rsk 8 of 22 WP -2775-15-F21.doc tried by a regular Suit instituted by one of the parties. She submits that in the present case, the challenge is to the ownership rights of the Respondent No.2 and no such relief could be granted. She would distinguish the judgments which are cited by learned counsel for the Petitioner as being on different factual scenario.
15. In rejoinder Mr. Ankhad would submit that the jurisdiction clause would make it clear that what was under challenge was deletion of name of the Petitioner from the share certificate which is an act touching the management of the Society. He would submit that even though there is no specific declaration, the averments in the plaint would establish that the relief sought is as regards the act of the Society in deleting the name of the Petitioner from share certificate being illegal. He would further submit that proviso to Section 91 is not applicable as the Petitioner is not seeking membership of the Society but is in fact questioning the act of the Society in deleting the name of Respondent No.2.
16. Considered the submissions and perused the record.
17. Before this Court, neither the application filed by the Respondent No 2 raising preliminary objection nor the reply of the Petitioner is placed on record. Only the correspondence exchanged rsk 9 of 22 WP -2775-15-F21.doc between the parties, the Dispute, the Appeal and the orders passed therein are on record. This Court is therefore constrained to hold that the factual position, as observed in the orders of the Trial Court and Appellate Court, are undisputed and has accordingly analysed the rival submissions.
18. The factual position appears to be that there is civil suit for partition and arbitration proceedings pending adjudication between the Petitioner and Respondent No 2 in respect of the subject Flat No 4 and car parking space. The Petitioner has been non suited on the ground of jurisdiction. Before adverting to the facts of the case, it will be apposite to refer to Section 91 of the MCS Act which reads thus:
"91. Notwithstanding [anything contained] in any other law for the time being in force, any dispute touching the constitution, [elections of the committee or its officers] conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated or by a creditor of the society, [to the co-operative Court] if both the parties thereto are one or other of the following:-
(a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the rsk 10 of 22 WP -2775-15-F21.doc society, or the Liquidator of the society [or the official Assignee of a deregistered society]
(b) a member, past member of a person claiming through a member, past member of a deceased member of society, or a society which is a member of the society [or a person who claims to be a member of the society;]
(c) a person other than a member of the society, with whom the society, has any transactions in respect of which any restrictions or regulations have been imposed, made or prescribed under sections 43, 44 or 45, and any person claiming through such person;
(d) a surety of a member, past member or deceased member, or surety of a person other than a member with whom the society has any transactions in respect of which restrictions have been prescribed under section 45, whether such surety or person is or is not a member of the society;]
(e) any other society, or the Liquidator of such a society [or-de-registered society or the official Assignee of such a de-
registered society] [Provided that, an industrial dispute as defined in clause (k) of section 2 of the Industrial Disputes Act, 1947, or rejection of nomination paper at the election to a committee of any society or refusal of admission to membership by a society to any person qualified therefor [or any proceeding for the recovery of the amount as arrear of land revenue on a certificate granted by the Registrar under sub-section (1) or (2) of section 101 or rsk 11 of 22 WP -2775-15-F21.doc sub-section (1) of section 137 or the recovery proceeding of the Registrar or any officer subordinate to him or an officer of society notified by the State Government, who is empowered by the Registrar under sub-section (1) of section 156,][or any orders, decisions, awards and actions of the Registrar against which an appeal under section 152 or 152A and revision under section 154 of the Act have been provided.] shall not be deemed to be a dispute for the purposes of this section.] (3) Save as other wise provided under [sub-section (2) to section 93 ], no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub- section (1).
Explanation 1.--A dispute between the Liquidator of a society [or an official Assignee of a de-registered society] and [the members (including past members, or nominees, heirs or legal representative or deceased members)] of the same society shall not be referred [to the co-operative Court] under the provisions of sub-section (1).
Explanation 2.--For the purposes of this sub-section, a dispute shall include--
(i) a claim by or against a society for any debt or demand due to it from a member or due from it to a member, past member or the nominee, heir or legal representative of a deceased member, or servant for employee whether such a debt or demand be admitted or not;
(ii) a claim by a surety for any sum or demand due to him from rsk 12 of 22 WP -2775-15-F21.doc the principal borrower in respect of a loan by a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not;
(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, by any officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any servant, past servant, past servant or deceased servant, or by its committee, past or present, whether such loss be admitted or not;
(iv) a refusal or failure by a member, past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it for breach of condition as the assignment."
19. For a dispute to fall within jurisdiction of the Co-operative Court under Section 91 of the MCS Act, the parties to the lis as well as the subject matter of the lis must fall within the classes specified therein. As far as parties to the lis is concerned, it is not in dispute that the purchase agreement of the subject flat was executed jointly in the name of the Petitioner and the Respondent No 2. As to whether the Respondent No 2 had contributed solely towards the purchase consideration is immaterial for the present purpose. The share certificate initially issued in respect of Flat No 4, which is annexed at Page 97 of the Petition, shows the name of the Petitioner appearing rsk 13 of 22 WP -2775-15-F21.doc second to that of the Respondent No 2 and the Petitioner may be construed as an Associate Member within meaning of Section 24 of MCS Act read with Bye-law 3(xxiv)(b) of the Model Bye-laws. It appears that the Petitioner's name came to be deleted subsequently and from 25th December, 2005 the share certificate stands in the sole name of Respondent No 2. Being a past member of the Respondent No 1 Society, the parties to the lis satisfy the description required under sub-section 1(b) of Section 91 of the MCS Act.
20. Having specified that one of the conditions for the dispute to be entertained by the Co-operative Court is satisfied, it will have to be seen whether the subject matter of the dispute touches the management of the Society.
21. The case pleaded in the Dispute is that the suit premises was bought in joint names of the Disputant and the Respondent No 2 and there has been transfer of share certificate in respect of the subject flat, which was in the names of the Petitioner and Respondent No 2, in sole name of Respondent No 2. The jurisdiction clause pleads that the Respondent No 1 unauthorisedly changed the names of owner of the Flat No 4 and the relevant share certificate. The frame of the Suit indicates that the Dispute challenges the transfer of the names of the owner of Flat No 4, the car parking space and the share certificate rsk 14 of 22 WP -2775-15-F21.doc in the sole name of Respondent No.2. The dispute questions the action of the Respondent No 1 Society in executing such transfer without any authorization by the Disputant when the name of the Disputant was shown in the share certificate prior to the year 2005. With these averments in the plaint the proceedings could have been filed only before the Co-operative Court. It is well settled that in order to determine the jurisdiction, the plaint has to be read as a whole to ascertain what is the real nature of the suit and the relief which the Plaintiff seeks. The form of relief is immaterial and if on meaningful reading of the plaint, it becomes apparent that the dispute is one touching the management of the Society then it is only the Co- operative Court which will have the jurisdiction to entertain the Dispute.
22. Whether the dispute as regards the transfer of the share certificate in name of the Respondent No 2 is a dispute touching the management of the Society will have to be seen. Bye-Law 139 of Model Bye-laws empowers the Secretary of the Society to issue share certificate to the members and to deal with the cases of cessation of membership. The activity of issuance of share certificate, receiving applications for transfer, endorsing the share certificates, issuance of duplicate share certificate etc are part of the day to day management rsk 15 of 22 WP -2775-15-F21.doc of the affairs of the Society. When such an action of the Society is challenged as being unauthorised, it is certainly a dispute touching the management of the Society and would thus be covered by Section 91 of MCS Act.
23. It is no doubt true that the Dispute does not seek the specific relief of declaration qua the act of the Society in deleting the name of the Petitioner. The Dispute was at the nascent stage and appropriate relief could have been sought by way of amendment. Though the form of relief may not be happily worded, in essence the relief sought was direction to the Society to restore the name of the Petitioner in the share certificate, which relief falls squarely within the jurisdiction of the Co-operative Court being related to the implementation of the Bye-Laws of the Society. The reliance placed by Ms. Ankleswaria on the proviso to Section 91 is misplaced as the Petitioner does not seek admission to membership but seeks to challenge the transfer of the share certificate in sole name of the Respondent No 2 by deleting the name of the Petitioner. Similarly, Sub Section (2) of Section 93 entitles the Co-operative Court to suspend the proceedings, if the dispute involves complicated question of law and fact. Nothing has been demonstrated to this Court that any such course was necessary in view of the complicated question of law and fact involved.
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24. In my view, the Dispute application could have been better drafted. Be that as it may. What is of relevance is the frame of the suit which questions the action of the Society in transferring the share certificate in the sole name of Respondent No.2 by deleting the name of the Petitioner and seeks restoration of status quo ante.
25. The Dispute does not raise an issue of ownership right title and interest in the subject flat and the car parking space. Merely because in separate independent proceedings, the issue of right title and interest is raised would not take away the jurisdiction of the Co- operative Court to entertain a dispute regards the unauthorised transfer of share certificate. If upon adjudication, it is found that the Disputant is not entitled to the relief, the consequence would be dismissal of the suit. All that the Dispute seeks is to restore the name of the Petitioner in the share certificate as appearing prior to the share certificate being transferred in the sole name of the Respondent No 2 and therefore the examination contemplated is whether the transfer of share certificate in sole name of the Respondent No 1 is in consonance with law. The fact that there are independent proceedings filed by the parties regarding the ownership of the subject flat is not by itself sufficient to take the Dispute out of jurisdiction of Co-operative Court.
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26. The Appellate Court has held that mere relief of declaration cannot be granted by the Court under Section 34 of Specific Relief Act without a proper consequential relief and the consequential relief are touching the question of title. In that event upon adjudication, the reliefs could be refused. The Appellate Court has further held that if the Disputant claims that the action of Society is illegal then any formal challenge is not necessary and in the partition suit, the right of Disputant over the flat can be adjudicated and the Society can be directed to issue the share certificate if Disputant is held to be the owner.
27. In my view, the Appellate Court has fallen in error in holding that the direction to the Respondent No 1 Society to record the name of the Disputant as the first owner in the share certificate can be issued by the Civil Court as the restoration of status quo ante qua the share certificate is not an issue which will arise for consideration either before the Civil Court in the partition suit or in arbitration proceedings.
28. The averments in the plaint determine the jurisdiction of the Court and where the relief is sought of restoring the share certificate in the joint names which stood earlier, it is only the Co-operative Court which could have granted the relief. The Appellate Court has rsk 18 of 22 WP -2775-15-F21.doc factually erred in observing that the present dispute was filed after the Civil Suit was filed whereas the position is vice versa.
29. At the inception, by taking into consideration the fact that there is a civil Suit, which is filed subsequently, in respect of joint family properties, the Appellate Court could not have dismissed the proceedings on the ground of jurisdiction. It is also pertinent to note that the Appellate Court has held that any act done by the Society lawfully in discharge of its duties and powers contemplated by the Act and bye-laws can only be questioned in the Cooperative Court, if any error is committed by the Society. After having held so, it was expected of the Appellate Court to consider the averments in the plaint which specifically questions the act committed by the Society in deleting the name of the Petitioner from share certificate which can certainly be questioned in the Co-operative Court. The Appellate Court proceeded on an erroneous basis that the relief sought by the Disputant pertains to the declaration of ownership rights in the respect of the Suit flat in the absence of any averments in the Dispute or any relief of declaration of title sought by solely relying on other civil proceedings filed by the parties.
30. In the decision of R. B. Rajput vs. Hiralal Bhagwandas Rajput and Anr., [Writ Petition No.5108 of 1987] the share certificate in that rsk 19 of 22 WP -2775-15-F21.doc case stood in the name of Respondent No.1 alone and thereafter by application made jointly by the Petitioner therein along with Respondent No.1, both were enrolled as joint members. Subsequently Respondent no.1 filed Dispute in Co-operative Court seeking declaration that Respondent No.1 be declared to have acquired Suit premises out of his own funds and the endorsement made in the name of Petitioner as joint associate member is without any proper and valid consent and same be deleted. Learned Judge held that when the Petitioner had got right of membership, Respondent No.1 could not have deleted the name of the Petitioner from the membership unilaterally without getting consent from the Petitioner therein and that if such practice is permitted then in spite of joint purchase of the flat shares the member who is first in list can throw out the other member and this will create a chaotic situation. Although not in the context of jurisdiction of Co-operative Court, the observation of learned Single Judge assumes significance and particularly the finding that there cannot be any deletion of the name unilaterally without consent of the other parties.
31. The decision in the case of Alok Agarwal and Anr. vs. Punam Co-operative Housing Society Ltd. & Ors. [2013 (2) Bom. C.R. 244)] relied upon by learned counsel for Respondent No.2 in respect of the rsk 20 of 22 WP -2775-15-F21.doc facts are clearly distinguishable as in that case the jurisdiction was questioned for the reason that there was an encroachment on the open space and common amenities and it is in that context the Court held that when member of Society commits an act of encroachment in respect of area which is not lawfully allotted to him by the Co- operative Society, the act is not committed by him in capacity of member and therefore assumes a character of encroacher or a trespasser. Pertinently, the said decision refers to Division Bench's decision in the case of Shyam Co-operative Housing Society Ltd. vs. Ramibai Bhagwansing Advani [A. I. R. 1952 Bombay 445] which held that dispute must be a dispute in which the member must be interested as a member and it must relate to a transaction in which the member must be interested as a member.
32. In light of the above discussion, in my view, the parties to the lis as well as the subject matter of the lis fall within the purview of Section 91 of MCS Act. As the Dispute was dismissed on the preliminary issue of jurisdiction, I have only considered the issue of jurisdiction and refrained from commenting on the merits of the matter.
33. Resultantly, Petition succeeds. The impugned orders dated 17 th April, 2013 and 8th December 2014 are hereby quashed and set aside.
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Dispute No.200 of 2013 is restored to the file of the Co-operative Court to be adjudicated on merits. Rule is made absolute in the above terms. In view of disposal of petition, Interim/Civil Applications, if any, do not survive for consideration and stand disposed of.
[Sharmila U. Deshmukh, J.]
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Signed by: Rajeshwari S. Karve
Designation: PA To Honourable Judge
Date: 23/09/2024 19:58:33