Bombay High Court
Mrs. Sanjivani Kailas Borade vs Shri. Kashinath Huseni (Waghe) Valher ... on 5 March, 2018
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.44 OF 2016
Sanjivani Kailas Borade, ]
Age : 41 years, Occ.: Housewife, ]
R/of Plot No.9/16, Mukundrao Ambedkar ]
Sahakari Gruhrachana Sanstha Mar., ]
District Solapur. ] .... Applicant
Versus
1. Kashinath Huseni (Waghe) Valher, ]
Age : 81 years, Occ. Retired, ]
R/of Plot No.9/16, Mukundrao Ambedkar ]
Sahakari Gruhrachana Sanstha Mar., ]
Vijapur Road, Dist. Solapur - 413 004. ]
Since deceased, through L.R. ]
Ashok Kashinath Waghe ]
2. Ashok Kashinath Waghe, ]
Age : 46 years, Occ. Service, ]
R/of B-2, Shubham Park, Flat No.19, ]
Nigdi, Pune - 411044, Dist. Pune. ] .... Respondents
Mr. Suhas S. Inamdar for the Applicant.
Ms. Saloni Ghule, i/by Mr. Himanshu Kode, for the Respondents.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 5 TH MARCH 2018.
ORAL JUDGMENT :
1. Mr. Inamdar, learned counsel for the Applicant, seeks permission to delete the name of Respondent No.1, as he has expired, and his legal 1/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: heir, i.e. Respondent No.2, is already on record. Leave granted. Amendment to be carried out forthwith.
2. Heard Mr. Inamdar, learned counsel for the Applicant, and Ms. Ghule, learned counsel for the Respondents.
3. By this Revision Application, preferred under Section 115 of the Civil Procedure Code, 1908, the Applicant is challenging the order dated 21st August 2015 passed by the District Judge-1, Solapur, thereby allowing Miscellaneous Civil Appeal No.9 of 2015 preferred by the Respondents herein and setting aside the order dated 28 th November 2014 passed by the 8th Joint Civil Judge, Junior Division, Solapur, below "Exhibit-1" in Regular Civil Suit No.409 of 2013.
4. By the order dated 28th November 2014, the Trial Court has returned the plaint filed by the Respondents-Original Plaintiffs, under Order 7 Rule 10 of CPC, for presentation before the appropriate Co- operative Court.
5. The brief facts of the present Revision Application are to the effect that, the subject matter of the Suit is a plot bearing No.9/16, admeasuring 92.98 sq.mtrs., out of Survey No.32/A1/3 (Old Survey No.307/A1/3), along with a building constructed thereon, admeasuring 250 sq.ft., situate at Nehru Nagar, Solapur. The said property is stated to be owned by "Mukundrao Ambedkar Sahakari Gruhrachna Sanstha 2/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: Limited". Respondent No.2-Ashok is the son of Respondent No.1, born from his first wife, namely, Parvati Waghe; whereas, present Applicant is the daughter of late Satyabhama Mule, the second wife of Respondent No.1, born from the first husband of Satyabhama, who died on 4 th August 2012.
6. Respondent No.1 was the Member of the Society. He has purchased the said plot and constructed house thereon. As per the case of Respondent No.2, Respondent No.1 was suffering from serious illness and taking disadvantage thereof, Applicant got executed the 'Sale-Deed' of the suit property, dated 20th August 2011 and, therefore, Respondent Nos.1 and 2 had filed the Suit before the Trial Court for cancellation of the said 'Sale-Deed' on the ground that, it is illegal, null and void and Respondent No.2 is, thus, having half share in the suit property. The relief of perpetual injunction was also claimed for restraining the Applicant from creating third party interest in the suit property.
7. After the Applicant appeared in the Suit, she filed an application at "Exhibit-20" for framing preliminary issue regarding the jurisdiction of the Civil Court to entertain the Suit on the count that, the disputed transaction of the suit property was touching the business of the Co- operative Society and, therefore, the Co-operative Court alone has jurisdiction to decide the Suit.
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8. Accordingly, the Trial Court framed the necessary preliminary issue and both the parties were given an opportunity to lead oral and documentary evidence. Respondent No.2-Original Plaintiff filed his affidavit-in-evidence and on the basis of the evidence produced on record, the Trial Court was pleased to hold that, as the disputed transaction was touching the business of the Co-operative Society, only the Co-operative Court has jurisdiction to decide the Suit. Hence, the jurisdiction of the Civil Court was barred. Consequently, the Trial Court returned the plaint to the Respondents, under Order 7 Rule 10 of CPC.
9. When this order was challenged before the Appellate Court, the Appellate Court, after considering the provisions of Section 91 of the Maharashtra Co-operative Societies Act, 1960, (for short, "Act of 1960"), and also the relevant case laws cited before it, was pleased to hold that, as the dispute pertains to the private sale transaction executed between the parties, the Civil Court alone has jurisdiction to decide the Suit and, accordingly, the Appellate Court has set aside the order of the Trial Court.
10. In this Revision Application, the submission of learned counsel for the Applicant is that, the finding given by the Appellate Court is not correct and legal. Especially, it is submitted that, in paragraph No.10 of its order, the Appellate Court has held that, " in order to attract Section 91 of the Maharashtra Co-operative Societies Act, the parties to the 4/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: dispute must be a member, past member or 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" and this condition is not satisfied in this case.
11. It is urged that, in the present case, Applicant is the present member of the Society; whereas, Respondent No.1 was the past member of the Society and Respondent No.2 is claiming through the past member of the Society and, therefore, the finding given by the Appellate Court that, the essential condition of Section 91(b) of the Act of 1960, is not satisfied, is perverse and against the express provision of law. According to learned counsel for the Applicant, on this ground itself, the impugned order passed by the Appellate Court is required to be quashed and set aside.
12. Further, by placing reliance on Section 2(16) of the Act of 1960, it is submitted that, 'Housing Society' means, "a Society, the object of which is to provide its members with open plots for housing, dwelling houses or flats; or if open plots, the dwelling houses or flats are already acquired, to provide its members common amenities and services".
13. In the instant case, as the business of the Co-operative Society, in which the suit flat is situate, is, therefore, to provide its member the open plot or dwelling houses or flats, the dispute between the parties 5/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: touches the business of the Co-operative Society and, therefore, the Appellate Court has committed an error in holding that, the present Suit is outside the purview of Section 91 of the Act of 1960.
14. In support of his submission, learned counsel for the Applicant has relied upon the Judgment of this Court in the case of Arun Wamanrao Shinde Vs. Prakash Bhagwan Dalvi and Ors., 1990 (3) Bom.C.R. 387 , wherein, the Suit was filed for a declaration that the Plaintiff, being assignee of the right, title and interest of Defendant No.1, was entitled for allotment of flat in place of Defendant No.1 in the Co-operative Society and it was held that, as the dispute touches the business of the Co-operative Society, the case falls within Section 19(1)(b) of the Act of 1960.
15. Here in the case, also it is urged that, as Respondent No.2 is claiming as legal heir of Respondent No.1, who was the member of the Co-operative Society, the dispute falls within the purview of Section 19(1)(b) of the Act of 1960, and hence, the impugned Judgment and Order of the Appellate Court, holding that Civil Court alone has jurisdiction to entertain the Suit, is required to be quashed and set aside.
16. Per contra, learned counsel for Respondent No.2 has supported the impugned Judgment and Order of the Appellate Court for the reasons stated therein and also by relying upon the Judgment of the Apex Court 6/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: in the case of Margret Almeida and Ors. Vs. Bombay Catholic Co- operative Housing Society Limited and Ors., (2012) 5 SCC 642.
17. In the light of these rival submissions advanced by learned counsel for both the parties, if one considers the nature of the dispute involved in the present case, then, it is apparent that the Suit clearly falls within the exclusive jurisdiction of the Civil Court and not at all in the jurisdiction of the Co-operative Court. The relief, which Respondent No.2-Plaintiff is claiming in the Suit, is for declaration that the 'Sale-Deed' of the suit plot, executed by Respondent No.1 in favour of the Applicant on 20 th August 2011, is illegal, null and void, as it was got executed taking disadvantage of the illness and old age of Respondent No.1 and it was without any consideration. Now the question 'whether the 'Sale-Deed' is null, void or otherwise and if it is to be declared as such, whether Respondent No.2 will get partition and possession of his half share in the suit property', can only be considered and decided by the Civil Court. The Co-operative Court, as such, cannot have this jurisdiction to decide the dispute of the present nature. It can be said so, considering the provisions of Section 91(1) of the Act of 1960, which categorically lays down as follows :-
"91. Disputes -
(1)Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the 7/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: committee or its officers other than elections of committees of the specified societies including its officer, 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 society, or the Liquidator of the society or the official Assignee of a de-
registered 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 8/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: 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 denned 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 other than a notified society under section 73 - 1 C or a society specified by or under section 73 -G, or refusal of admission to membership by a society to any person qualified therefore 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 sub -section (1) of section 137 or the recovery proceeding of the Registrar or any officer sub ordinate to hi m or an officer of society notified by the State Government, who is empowered by the Registrar under sub-
section (J) of section 156, or any orders, decisions, awards and actions of the Registrar against which an appeal under section 152 or 152 A 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."
18. The purport of this Section, therefore, makes it clear that, only when the dispute touches directly to the business of the Co-operative Society, then only, the Co-operative Court will have the jurisdiction and thereby exclude the jurisdiction of the Civil Court. 9/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 :::
19. Here in the case, though the reliance is placed on the definition of the "Housing Society", as given in Section 2(16) of the Act and also to the Judgment of this Court in the case of Arun Wamanrao Shinde (Supra), it can be clearly seen that, in the said case, Defendant No.2-Co- operative Housing Society was made party to the Suit, as the allegation was that, prior to formation of Defendant No.2-Co-operative Housing Society itself, certain persons had joined hands to promote the said Society and enrolled the members. One of the persons enrolled was Defendant No.1. Defendant No.1 had made certain payments towards the cost of the said flat. His financial position becoming difficult, he has assigned his right, title and interest on or about 3 rd December 1982 to the Plaintiff. On the basis of those documents, the Plaintiff started making payment to the Society and attending the meetings. Subsequently, Defendant No.1 tried to take advantage of the fact that, his name was still on the Membership Roll and, therefore, the Plaintiff was compelled to sue for the relief of declaration that he was entitled for allotment of a flat by Defendant No.2-Society in place of Defendant No.1. Thus, even a cursory glance to the facts of the said case is more than sufficient to show that the dispute involved in the said Suit was clearly touching the business of the Society, as the entitlement for allotment of the flat by Defendant No.2-Society was sought. In that backdrop of the facts, it was held that, the Co-operative Court will have the jurisdiction, as it touches the business of the Co-operative Housing Society. 10/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 :::
20. As against it, in the present case, as rightly held by the Appellate Court, the relief relating to transfer of the membership of the Co- operative Society is merely an ancillary relief. The main relief pertains to the cancellation of the 'Sale-Deed' itself, which is alleged to be executed taking advantage of the illness and old age of Respondent No.1. Therefore, the dispute raised is of a civil nature, in a sense that, it pertains to cancellation of the 'Sale-Deed' on the ground of it being illegal, null and void and also for partition and possession of half share of Respondent No.2.
21. In such situation, Civil Court's jurisdiction to adjudicate civil dispute is unlimited, subject only to limitations laid down by law, either expressly or by necessary implications. As held by the Apex Court in the case of Margret Almeida and Ors. (Supra), relied upon by learned counsel for the Respondents and also by the Appellate Court, such dispute cannot be said to be out of the purview of the Civil Court. Conversely, the Civil Court alone can have the jurisdiction to decide such dispute, as it neither touches directly to the business of the Co-operative Housing Society, nor the Co-operative Housing Society has anything to do in the present Suit in respect of the relief, which is claimed by Respondent No.2. The Co-operative Housing Society will only implement whatever the Civil Court decides, as to whether the membership should be given to the Applicant or to Respondent No.1. The membership given to the Applicant is on the basis of the 'Sale-Deed' and if that 'Sale-Deed' is 11/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 ::: set aside, then, naturally, the Co-operative Housing Society is bound to cancel the said membership. Therefore, the Co-operative Housing Society is not directly concerned in the present dispute, nor the present dispute touches the business of the Co-operative Housing Society.
22. Hence, the Appellate Court has rightly held that the jurisdiction of the Civil Court is not at all ousted. Conversely, the Civil Court alone has jurisdiction to entertain the Suit of this nature. The impugned order, therefore, passed by the Appellate Court does not call for any interference. Revision Application, hence, stands dismissed.
23. Needless to state that, whatever observations made here-in-above are only for the purpose of deciding this Revision Application and they will not affect the merits of the Suit.
[DR. SHALINI PHANSALKAR-JOSHI, J.] 12/12 CRA-44-16.doc ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:10:58 :::