Bombay High Court
Ramchandra Krushnarao Pitale vs The Scientific Co-Operative Housing ... on 28 October, 2010
Author: A.B. Chaudhari
Bench: J.P. Devadhar, A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : N A G P U R.
LETTERS PATENT APPEAL No. 396 OF 2009
Ramchandra Krushnarao Pitale
aged 87 years, Occupation : Pensioner,
r/o Tatyatope Nagar, Nagpur.
ig ... APPELLANT.
-VERSUS -
1. The Scientific Co-operative Housing Society Ltd.,
Laxminagar, Nagpur.
through its President.
2. Vishwas Khot,
Secretary,
Scientific Co-operative Housing Society Ltd.,
Laxminagar, Nagpur.
3. Neelmani s/o Jotiram Dhurve,
Occupation : Business,
Laxminagar, Nagpur. ... RESPONDENTS.
....
Mr. R.L. Khapre Advocate for the Appellant.
Mr. A.M. Ghare Advocate for Respondents 1 and 2.
Mr. S.P. Kshirsagar Advocate for Respondent no.3.
....
CORAM : J.P. DEVADHAR & A.B. CHAUDHARI, JJ.
RESERVED ON : 20 OCTOBER, 2010.
th
PRONOUNCED ON : 28.10.2010.
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J U D G M E N T (Per A.B. Chaudhari, J.) :
This letters patent appeal is directed against the judgment and order dated 15.6.2009 passed by the learned Single in Writ Petition No. 4834 of 2008 dismissing the petition filed by the appellant.
2. This letters patent appeal was taken up for final disposal pursuant to an order made by this Court on 16.10.2009 notifying the parties that the same would be taken up for final disposal. When the appeal was called out before us on 4.10.2010 it was agreed between the parties that in terms of the said order dated 16.10.2009 the appeal should be disposed of finally as the age of the appellant is 89 years and the counsel for the appellant stated that the appellant has been fighting the litigation to get the plot since the year 1961. We accordingly proceeded to hear the appeal. On 6.10.2010 Mr.Ghare, learned counsel for respondents 1 and 2, raised a preliminary objection on the basis of our judgment in LPA 150 of 2010 (Kalpesh Hemantbhai Shah v. Manhar Auto Service) decided on 1.10.2010 wherein we held that in case of dispute between landlord and tenant under the Rent Control Act 1999 as per the decision of the apex court in the case of Shalini Shyam Shetty v. Rajendra Shankar Patil - 2010 (7) SCALE 428 letters patent appeal would not be maintainable. On 6.10.2010 we heard the learned counsel for the rival ::: Downloaded on - 09/06/2013 16:35:13 ::: 3 parties on the said preliminary objection and made an order which reads thus :
"Shri Ghare, learned counsel for respondent Nos. 1 & 2, raised a preliminary objection about maintainability of the present Letters Patent Appeal. In support of his submissions, he relied on the decision of this Court rendered on 1.10.2010 in LPA No. 150/20, in which the recent decision of Hon'ble Supreme Court in Shalini Shyam Shetty & anr. v. Rajendra Shankar Patil reported in 2010 (7) SCALE 428 was considered in detail.
2. Shri R.L. Khapre, learned advocate was heard against the preliminary objection that was set up by Shri Ghare.
3. Relying on the said judgment, Shri Ghare argued that in fact the learned Single Judge exercised the power under Article 227 of the Constitution of India and therefore this Court ought to rely on its judgment dated 1.2.2010 (cited supra).
4. Having heard learned counsel for the rival parties, we find that in the decision rendered by us in LPA No. 150 of 2010 (Kalpesh Hemantbhai Shah v. Manhar Auto Stores) there was specific dispute between the landlord and tenant. We reiterate the relevant extract in paragraph 14 of the said judgment as under :
"To reiterate, the same is a direct pronouncement on the issue regarding the petitions arising out of disputes between `landlord and tenant' and entertaining the same under Article 227 of the Constitution.'
5. In view of the above and since admittedly the present Letters Patent Appeal is not related to the matter between the landlord and tenant, we reject the preliminary objection."::: Downloaded on - 09/06/2013 16:35:13 ::: 4
We thus overruled the said preliminary objection.
3. On 20.10.2010 the appeal was called out for final hearing when Mr.Kshirsagar, learned counsel for respondent no.3, invited our attention to Civil Application No. 752 of 2010 filed by him on behalf of respondent no.3 and he urged before us that the letters patent appeal, according to respondent no.3 also, was not maintainable and therefore the same should be dismissed. He further urged before us that he wanted six weeks time to approach the apex court challenging the above order dated 6.10.2010 made by this Court rejecting the objection raised by Mr.Ghare as regards the maintainability of the present appeal. While dealing with Civil Application No. 752 of 2010, we find in the first place that respondent no.3 had never raised the said objection earlier. We, therefore, reject the said civil application No. 752 of 2010. That apart, since Mr.Kshirsagar urged this Court to dismiss the present letters patent appeal as not maintainable, we propose to record further reasons in response to the preliminary objection now raised by respondent no.3 regarding maintainability of the letters patent appeal.
4. It is not in dispute that The Scientific Cooperative Housing Society Ltd. in which the appellant was allotted plot No. J-1 is registered under the Maharashtra Co-operative Housing Societies Act, 1960 (for short ::: Downloaded on - 09/06/2013 16:35:13 ::: 5 the `Act') and its bye-laws are approved by the District Deputy Registrar from time to time in accordance with the provisions of the said Act. It is further not in dispute that in a dispute under Section 91 of the Act the appellant wanted the enforcement of his rights under the Act, Rules and the approved bye-laws of the Society, i.e. approved by the District Deputy Registrar under the provisions of the Act and Rules through the medium of Cooperative Court in order to have transfer of plot from the society in his name. It is in this background some of the provisions of the Maharashtra Cooperative Societies Act will have to be noticed.
Section 23 of the Act as well as approved bye-laws of the Society provides that membership of the Society shall be "open" to persons duly qualified. Bye-law No. 9(j) provides that the membership shall not be refused without sufficient cause to any duly qualified person and grounds of refusal shall be recorded. While clause (k) provides that when a person is refused admission as a member of the Society, such refusal, if any, should be communicated to the concerned member within three months. Sub-
section (2) of Section 23 provides for remedy to the party if refusal of membership is communicated. In the instant case, it is the grievance of the appellant that for all practical purposes from 1961 the society treated him as a member but started denying it from the year 1993; and then in violation of Sec. 23 of the Act and Bye-law No. 9(j) & (k) never refused ::: Downloaded on - 09/06/2013 16:35:13 ::: 6 membership nor gave any reasons to refuse the same so that appellant could take up the remedy under Section 23(2) of the Act.
Section 36 of the Act provides that a Society shall be a body corporate. Section 39 of the Act provides that every society shall keep at his registered office copies of the Act, Rules and bye-laws and a list of members for inspection to the `public'. In case of non-compliance there are remedial provisions in Chapter, namely `Control & Supervision'. It is the grievance of the appellant that he had applied for inspection. It is the stand of the Society taken in the written statement that it was not obligatory for it to give any inspection to the appellant as he was not a member which is contrary to Sec. 39 of the Act. Rule 8 of The Maharashtra Co-operative Societies Rules, 1961 provides power with the Registrar to direct the society to make bye-laws and get them approved from him. Rule 10 provides for classification and in item no.5 of Rule 10, housing societies are mentioned. Rule 12 provides for registration of bye-
laws and Rules of the Societies. Rule 30 provides for registration of members and list of members to be maintained by the society. The grievance of the appellant throughout has been centering around statutory provisions of Maharashtra Cooperative Societies Act, Rules and approved bye-laws which can be seen from the dispute and the evidence led before the court and the proved correspondence between the parties. The ::: Downloaded on - 09/06/2013 16:35:13 ::: 7 Cooperative Court acting under Section 91 of the Act is entitled to enforce and record findings in relation to such non-compliance of the provisions.
In Vijay Ramji Pawar v. Girna Sahakari Sakhar Karkhana Ltd. - 1986 Mh.L.J. 314 this Court in para 7 held thus :
"In any case, Bye-law 34(C) only gives effect to the primacy of the general body which is also accepted vide Section 72 of the Act. Section 144-E speaks of a disqualification, "by or under any provisions of the Act. Bye-laws have statutory force because they are drawn up and enforced under the powers conferred upon a Society by the statute. Once they are accepted as required by the statute they become a provision supplementing the Act.
Therefore, unless there be a prohibition in the Act disabling the general body from doing anything, a prohibition cannot be read into the powers of the general body. It is not possible to accept the contention that Section 144-E(1)(e) takes within its scope a bye-law framed or adopted by a Society. Where the framers of the statute wanted to indicate that bye-laws would also govern a situation , they have made that expressly clear in the statute itself. An instance of this is sub-section (3) of Section 73G which makes it clear that the committee of the management shall be elected by a general body irrespective of what the bye-laws of ::: Downloaded on - 09/06/2013 16:35:13 ::: 8 the Society prescribe. That the bye-laws have to give way if there be conflict between them and the statute is not disputed.
Section 9 of the Act specifically provides that the Registrar has to accord approval to such bye-laws as are "not contrary to the Act or the Rules." Sub-section (2) of Section 73G indicates that the members elected on the committee (here, the Board) at a general election to elect the committee are to hold office for a period of five years. Next, it lays down that the five years are to be computed from the date on which the first meeting is held."
5. Now, we quote below para 72 and 79 from the decision of Apex Court in the case of Shalini's case, 2010(7) SCALE 428, supra, which reads thus :
"72. Therefore, a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only if he/she discharges any official duty.
"79. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority."
In view of the above discussion, we hold that the learned Single ::: Downloaded on - 09/06/2013 16:35:13 ::: 9 Judge exercised powers under Article 226 of the Constitution since the subject matter relates to violation of the provisions of Act, Rules and approved bye-laws. For these additional reasons, we reject the preliminary objection raised by Mr.Kshirsagar, learned counsel for respondent no.3.
6. Having disposed of the preliminary objection as above, we now proceed to determine the matter on mrits.
7. The Scientific Cooperative Housing Society Ltd. Laxminagar, Nagpur, was originally registered with the Registrar, Co-operative Societies, C.P. & Berar, on 18.11.1937 having registration No. 321. After re-
organization of the States, the Housing Society stood governed by the provisions of The Maharashtra Co-operative Societies Act, 1960 and accordingly the bye-laws of the Society were amended and approved by the District Deputy Registrar, Cooperative Societies and registered on 29.7.1975. The object of the Society was mainly to provide plots for construction of houses. The appellant- Ramchandra Krushnarao Pitale made an application for grant of membership to the Society on 13.2.1961, in response to which he received a letter dated 15.8.1961 (Ex.D-2) issued by the Honrary Secretary of the Society stating therein that on 13.8.1961 the managing committee of the Society held a meeting and allotted plot No. 1 in Block J of the layout and the rate per square feet would be 37 nai paise. Since the appellant wanted a corner plot, additional cost of Rs.50/-
::: Downloaded on - 09/06/2013 16:35:13 ::: 10was required to be paid along with other charges. In response to this, the appellant paid the amount of Rs.3,105/-as per demand on 25.9.1961 for the plot in question admeasuring 7100 sq. ft. The price at the rate of 37 nai paise per square foot for 7100 sq.ft. (which is factually as revealed now is 7997 sq.ft.) would be Rs.2960/- (rounded off). The appellant deposited Rs.3105/- which obviously included share price, membership fee etc. and accordingly Receipt No. 177 dated 25.9.1961 was issued to him. The appellant thereafter went on making correspondence requesting the society to execute the sale-deed in respect of the plot allotted to him. One Shri Trimbak Baliram Deo filed a civil dispute in the same subject matter, i.e. in relation to the allotment of plots by the society to various members and by adding appellant as opponent No.13 in the said dispute along with other allotees of the plots by a resolution dated 13.8.1961 which was confirmed on 22.10.1961, and challenged the said resolutions of allotment of plots.
Upon receipt of the said dispute as per the extant provisions, the nominee of the Registrar of the Cooperative Socieites, Shri Nagarkar, quashed the minutes of the proceedings dated 13.8.1961 and 22.10.1961 regarding allotment of plots. The said order of nominee was put to challenge before the higher authorities and finally was set aside by the Maharashtra Co-
operative Tribunal. The dispute was then transferred to the Cooperative Court in accordance with the provisions of Maharashtra Cooperative ::: Downloaded on - 09/06/2013 16:35:13 ::: 11 Societies Act, 1960 which came into force at the relevant time. During the pendency of the said Dispute No. 420 of 1969 (new number after transfer to cooperative Court) there was injunction order made by the Cooperative court in the matter of transfer of suit plots etc. In the meanwhile, there was correspondence between the appellant and the society. The said dispute finally stood terminated upon dismissal on 24.8.1992 for want of prosecution and was never restored.
8. After dismissal of the said dispute the appellant again started requesting the Society to transfer the plot allotted to him by way of sale-
deed but it appears that due to long lapse of time the office bearers of the Society changed their mind with a view to give the plot of the appellant to somebody else and resultantly when the appellant realized that he was likely to be deceived, he filed Dispute No. 713/93 in the Cooperative Court, Nagpur and prayed therein that the Society should be directed to execute the sale-deed of the plot allotted in his favour and also to cancel the alleged resolution passed in the third week of August 1993 or thereafter possibly to allot his plot to respondent no.3.
9. Respondent no.1 - society filed its written statement to the said dispute and denied the claim made by the appellant and during the course of pendency of the dispute, also amended the written statement vide written statement dated 22.3.1994.
::: Downloaded on - 09/06/2013 16:35:13 ::: 1210. ` In support of his case the appellant examined himself and was cross-examined. Respondent no.1 did not examine any witness nor produced any documents before the Court, except relying on the written statement. The respondent no.3, i.e. the subsequent entrant into the suit plot filed his written statement and took a stand that the society made him a member and agreed to sell the plot of the appellant to him. The respondent no.3 entered the witness box and was cross-examined. The Cooperative Court after hearing the parties made the impugned judgment and order dismissing the dispute filed by the appellant, so also the Co-
operative appellate court and finally the learned Single Judge of this Court.
It is in this background the present appeal is before us.
11. Mr.Khapre, learned counsel for the appellant made the following submissions :
(i) The learned Co-operative Court as well as courts below committed an error in holding that the disputant failed to prove that he was enrolled as a member of the society when there was voluminous evidence on record- both oral as well as documentary and contemporaneous correspondence duly proved on record and exhibited before the trial court, which the courts below have not bothered to look into. In this connection the burden of proof was on the society and the same was not at all discharged and, ::: Downloaded on - 09/06/2013 16:35:13 ::: 13 as a matter of fact, not a single witness was examined by the society to prove the stand taken in the written statement. Respondent no.1/society miserably failed to prove the same and, on the contrary, indulged in suppressing material facts and documents despite notice to produce the documents that was given by the appellant in the first court which was not even responded. When the notice to admit documents was given, the documents were readily denied. The society deliberately refused to produce all the material documents on record which would have revealed the truth. There is ample evidence on record to show that despite demand for inspection of documents in the custody of the society, there was a deliberate refusal on the part of the society contrary to the provisions of The Maharashtra Cooperative Societies Act and Rules thereunder and that was obviously with a view to disable the appellant from proving his case from the documents in the custody of the society and then to make a bold argument that the appellant never discharged the burden of proof that he was a member of the society, that he was allotted the plot and that he was entitled for execution of the sale-deed of the said plot and further that he had paid the share money so also the membership fee. Even the material resolutions under which the plot was allotted to the appellant and the application for membership filed by the appellant was not produced by the society. The ::: Downloaded on - 09/06/2013 16:35:14 ::: 14 respondent no.1/society thus wanted to play the game of hide and seek.
(ii) The courts below having recorded a finding that there was no cancellation of allotment of plot to the appellant at any point of time or cancellation of membership, the fact of allotment of plot in his favour continues to remain as it is. Thus the courts below have inconsistently recorded a finding that the plot stands allotted to the appellant but not the membership though the appellant paid total amount of Rs.3105 (including the charge of Rs.50/- for corner plot, share money and membership-fee).
(iii) The courts below committed error in holding that the appellant had incurred disqualification since he purchased a plot in other housing society in the year 1971 when as a matter of fact the bye-laws of both the societies do not at all show any such prohibition. Even otherwise the appellant would be entitled to a plot in the society where he had first applied and was allotted the same in such society. Such a stand could not be allowed to be taken since the appellant has been waiting for the transfer of the plot by the respondent no.1/ society right from 1961. The said question was wholly irrelevant and could not have been allowed to be set up at the instance of respondent no.1.
(iv) The courts below erred in holding that the dispute was ::: Downloaded on - 09/06/2013 16:35:14 ::: 15 barred by limitation without considering the correspondence between the parties and the pendency of the dispute filed by Mr. T.B. Deo and its result only on 24.8.1992 and the dispute thereafter filed by the appellant on 7.9.1993for execution of the sale-deed in his favour.
(v) The courts below erred in holding that the dispute was not maintainable.
12. Mr.Ghare, learned counsel for respondent no.1/society, submitted as under :
(a) that the initial burden of proof was on the appellant to prove that he was a member of the society and since he failed to prove the same by oral or documentary evidence, the courts below were right in holding that the dispute was not maintainable in view of the provisions of Section 91 of the Act because a person has to be a member of the Society.
(b) the documents produced by the appellant before the Cooperative Court even if taken on their face value would at the most indicate that there was a paper allotment of the plot J-1 in favour of the appellant. The Receipt No.177 as per Exh. D-1 filed by him shows that it was towards cost of the plot only and not towards the share money and membership fee, (Rs.100/- towards share money and Rs.5/- towards membership fees).
(c) the courts below have rightly held that mere ::: Downloaded on - 09/06/2013 16:35:14 ::: 16 payment towards the cost of the plot without admission as member by following due procedure under bye-laws, no right can be exercised by the appellant. Even assuming that there was allotment of plot J-1 in favour of the appellant or that he had made payment of Rs.3105/-, in absence of any resolution of the managing committee to admit him as a member and in the wake of failure on the part of the appellant to prove that he was admitted as member by particular resolution, no fault could be found out that the dispute was not maintainable or the appellant being not member was not entitled to execution of sale-deed of the plot of the society. The learned counsel however fairly conceded that the finding recorded by the cooperative court that the order of the nominee of the Registrar operated throughout is factually wrong because the same was set aside by the cooperative appellate Tribunal finally. However, according to the learned counsel, that by itself would not be sufficient to infer that the appellant would be entitled to exercise rights of membership of the Housing Society.
(d) As regards the finding regarding limitation, Mr.Ghare argued that the courts below have examined the fact about late filing of the dispute by the appellant and therefore the dispute was barred by limitation. According to the learned counsel, all these are the findings of facts which cannot be looked ::: Downloaded on - 09/06/2013 16:35:14 ::: 17 into in letters patent jurisdiction by this Court. Even if the findings are wrong, necessarily they need not be interfered with. The Cooperative appellate court has also factually found that the appellant did not produce application for membership or allotment of plot nor any resolution admitting him as a member nor any proof to show that he was a member of the society and therefore the findings cannot be said to be wrong. The counsel thus urged this Court to dismiss the letters patent appeal on merits.
13. Mr.Kshirsagar, learned counsel for respondent no.3, who is admittedly a party affected by the doctrine of lis pendens, argued that respondent no.3 is a bona fide purchaser for value and has been in possession of the suit plot for over 30 years. The society has admitted him as a member by the resolution and that resolution has not been challenged by the appellant by amending the dispute, so also the resolution of allotment of the same plot J-1 of the appellant in favour of respondent no.3. The counsel then argued that in the absence of challenge to the resolution admitting him as a member of society though in the year 1993, no relief can be granted to the appellant and the sale-deed and membership conferred on respondent no.3 will have to be confirmed, the same having been not challenged by a specific prayer in the dispute or by amendment.
The counsel fairly conceded that except filing of written statement the society did not adduce any documentary or oral evidence. The counsel then pointed out that respondent no.3 entered into registered agreement for purchasing the said ::: Downloaded on - 09/06/2013 16:35:14 ::: 18 plot J-1 from respondent no.1/society. The sale-deed has also been executed pursuant to the Award that was passed by the Cooperative court between the society and respondent no.3. After the agreement, now sale-deed has been executed for a consideration of Rs.85 lacs for the plot admeasuring 743.22 sq. mtrs. in the respondent no.1/society on 16.9.2010 and thus the sale-deed has become final. The counsel then submitted that even the said compromise award dated 6.9.2010 in Dispute No. 231 of 1998 filed by respondent no.3 against the society has not been challenged and therefore the present letters patent appeal deserves to be dismissed outright with costs.
14. CONSIDERATION :
We have gone through the entire documentary as well as oral evidence tendered before the cooperative court. We have also gone through the record and proceedings, evidence and pleadings of the parties. We have also heard the learned counsel for the rival parties for a few days. First we propose to take up the issue of membership, allotment of plot and limitation together.
15. At the outset, it is of utmost importance to point out the various reasons as to why this Court is required to interfere even on merits in its letters patent jurisdiction. It is an admitted position, as fairly conceded by Mr.Ghare learned counsel for respondent no1, that in the dispute where several factual questions were involved, requiring oral as well as documentary evidence which was admittedly in the custody of the society, the respondent no.1/society chose not to examine a single witness before the first court on behalf of the society.
::: Downloaded on - 09/06/2013 16:35:14 ::: 19Respondent no.1 did not produce and prove a single document relevant to the case, did not respond to the notice to produce documents that was filed by the disputant and also did not produce the documents which were demanded.
Respondent no.1 also did not admit any document in response to the notice to to admit documents. On the contrary, the respondent no.1/society took a stand and which was accepted by the courts below despite the above factual background that it was the appellant who did not prove that he was admitted as a member of the society. The courts below totally ignored the correspondence duly proved on record by the appellant between the appellant and society and the Registrar to find out the live link that was duly established by the appellant.
None of the courts even bothered to look into those documents to find out whether the attempt of the respondent/society to show that the appellant was not a member and the dispute was barred by limitation and was contrary to evidence on record. There is a total failure on the part of the courts below on this aspect of the matter and that is why we are required to interfere in the matter.
Shockingly enough, the courts below relied upon the defence taken by the society in its written statement treating the written statement as evidence before the court and thus rejected the dispute filed by the appellant. The case of the appellant thus will have to be examined with the above preface.
16. The appellant made an application on 13.2.1961 for membership and allotment of plot to respondent no.1-society. Though a finding has been recorded by the courts below that he did not produce the said application before ::: Downloaded on - 09/06/2013 16:35:14 ::: 20 the court or that he never made such application, the courts below ignored Exh.D-2 dated 15.8.1961 which is a letter issued by the society to the appellant at his Gwalior address wherein there is a clear reference to his application dated 13.2.1961. In the said letter it is stated that in its meeting dated 13.8.1961 the managing committee allotted Plot J-1 in his favour and the price was 37 nai paise per square foot and that he will have to pay Rs.50/- as additional charge since he wanted a corner plot plus other charges. Pursuant to this letter Ex.D-2 payment was made by the appellant to the tune of Rs.3105/- as per Receipt No.177 dated 25.9.1961 (Ex.D-1). This receipt shows the amount towards cost of the plot. The table/chart that was filed by the society in the Cooperative Dispute No.420 of 1969 (T.B.Deo v. Scientific Society) shows appellant as defendant in the said dispute with Plot No. J-1, admeasuring 7100 sq.ft. and share money of Rs.100/- indicated against his name. The chart in the remarks column against the appellant shows "irregular" and in the column of date of admission of membership, no date is mentioned. The price quoted is 37 naise paise per square foot. The cost of the plot admeasuring 7100 sq.ft. Comes to Rs.2627 + Rs. 50/- for corner plot + Rs.100/- share money + Rs.5/- for membership = Rs.2782/-. The amount of Rs.3105/- is obviously in excess on all the counts. The society deliberately withheld these details recorded in its proceedings books and other relevant records from the Court. It is in the evidence and Ex. D-13 letter dated 28.8.1966 with reference to letter dated 22.8.1966 issued by the Administrator of the Society appointed by the ::: Downloaded on - 09/06/2013 16:35:14 ::: 21 Government that the appellant protested by saying that it was high time that the plot allotted to him was not being transferred to him though his deposits were lying idle with the society and though order of the nominee of Registrar was vacated. The Administrator had written to the appellant that it may not be possible to execute the sale-deed in his favour because of legal complications and care was being taken to expedite the matter. On 13.9.1966 Ex.D-14 appellant again wrote to the Administrator that sale-deed should be executed in his favour and the delay was caused for baseless and malicious reasons. On 4.10.1966 (Ex.D-11) the Administrator informed the appellant that execution of sale-deed will not be delayed by a day as soon as the legal position is clarified.
On 2.4.1967 (Ex.D-12) in response to the letter dated 30.3.1967 of the appellant, the Administrator wrote to him that though the dispute filed by Mr. T.B. Deo was dismissed, a revision before the Government was filed and stay was obtained and therefore no further action to implement the resolution could be taken. He again wrote a letter dated 27.7.1968 (Ex. D-16) to the Secretary of the Society and after asserting that he being a member was allotted a plot but was being treated differently. By letter dated 15.10.1970 (Ex. D-9) the society gave similar reply to him. Exh. D-3 is a letter addressed by the appellant to the society of which the very first page shows assertion by the appellant that he is a member of the society and was allotted a plot by allotment letter dated 15.8.1961 and had paid the required share money and membership fee etc. and was given a receipt. He referred to 12 persons to whom different plots were allotted and ::: Downloaded on - 09/06/2013 16:35:14 ::: 22 against his name plot J-1 is shown. He also made a grievance that the society had executed a sale-deed in favour of eight persons whose names were given in the said letter. Under the resolution dated 15.8.1961 it was agreed to issue necessary share certificates as sale-deeds to other allottees were executed for their respective plots. No injustice should be done to the appellant or three others as per the decision of the committee dated 13.8.1961.
17. On 20.10.1970 the society wrote a letter Ex.D-9 to the appellant in response to his application dated 15.10.1970 stating therein that the managing committee was made aware about the grievance made by the appellant, but since the dispute filed by T.B. Deo was pending in the court and the appellant was a party to the suit as defendant no.13, no action could be taken further as it would amount to contempt and everybody will have to wait till the decision of the court. In the letter dated 3.9.1972 Exh.D-8 written by the society to the appellant it was stated with reference to his application dated 28.8.1972 that the delay in executing the sale-deed in his favour in respect of the plot allotted to him was due to Civil Suit No. 413 of 1969 and Civil Suit No. 420 of 1969 in which the appellant is one of the parties and there is an injunction to part with any plot and that is why the application to execute the sale-deed in his favour could not be entertained. There is one sentence which is quoted below "
"As for non receipt of notice of meeting, we have sent notices to you every year under certificate of posting at your address supplied by you."::: Downloaded on - 09/06/2013 16:35:14 ::: 23
18. The appellant also wrote letters Exs. D-15 (May 1982) to the Divisional Joint Registrar, Cooperative Societies, Nagpur, repeating his grievance . To know the state of mind of the appellant, it is better to quote below a small portion from letter Exh. D-16 dated 27.7.1968 -
"I hope you must have by now become conversant with the injustice done towards some of the members who were allotted plots by the Society vide resolutions dated 13.8.1961 and 22.10.1961. I am one of those allottees and have been trying to seek justice for long. I had paid the total cost of the plot on 13.9.1961 but inspite of my requests the registration was postponed by the Arbitrator for some reason or the other, even after the order of the Assistant Registrar I. Dated 30.6.1966 which set at rest the so-called dispute. Since I am posted at Gawalior, it is very difficult for me to knock at the door of the society frequently. Now that the new Managing Committee has come in, I hope the justice would be done in my case and the plot allotted to me would be registered in my name early so that I may be able to take up construction of house early."
Under that letter he thus prayed for justice. On 22.8.1992 (D-4) he again wrote a letter to the society and repeated the facts and again prayed that justice should be done to him since he is waiting for 30 long years. On 14.8.1993 he filed an application to the Society praying for inspection of the records of the society ::: Downloaded on - 09/06/2013 16:35:14 ::: 24 since he reliably learnt that respondent no.3 was being favoured in respect of the plot which was allotted to him and for which he had paid the entire amount way back on 13.8.1961. He was never given inspection as sought by him.
Section 39 of the Maharashtra Cooperative Societies Act, 1960 reads thus :
"Every society shall keep, at the registered address of the society, a copy of this Act and the rules and of its bye- laws, and a list of members, open to inspection to the public free of charge, during office hours or any hours fixed by the society therefor."
Perusal of the above provision shows that the society is bound to give inspection to the public while in the instant case it was the appellant who claimed to be a member.
19. Resolution No. 4 dated 15.8.1968 (proceedings-book withhled) passed by the society is to the following effect :
"The cases of the following persons were gone through for consideration of issue of share certificate.
1. Shri R.K. Pitale 2. Dr. B.R. Kate (Appellant)
3. Shri M.J. Godase 4. Mr. H.P. Thatte These persons have paid their share money and admission fee in 1961. Their applications so far they relate to membership were in order according to law and bye-laws of the society.
They did not then possess any site for house or a house in Nagpur.
Each individual case was considered.::: Downloaded on - 09/06/2013 16:35:14 ::: 25
Each member agreed that admission to membership and allotment of plot are different subjects. Under the law there is no provision that a member must have a plot in the layout. Several other applicants who were not sold plots have been admitted as members and issued share certificates in the past. There is no reason why these persons be deprived of this right. The committee therefore resolved that they shall be issued necessary share certificate."
20. On 16.11.1994 the disputant had given notice to produce documents under Order 11 Rule 16 of Code of Civil Procedure to the society to produce the documents total four in number including the entire proceeding book of managing committee, managing committee resolution in respect of confirmation of the resolution dated 13.8.1961, original cash book entry in respect of payment of plot J-1 and in respect of payment of share and membership money, but it is worth noting that the society did not produce those documents before the Court to enable it to find out the truth. Thereafter an application (Ex.34) was filed before the Court in the dispute praying for directions to the society to produce documents mentioned in the said notice dated 16.11.1994 to produce documents but nothing was produced by the society. The appellant had filed his evidence (Ex.36) and had narrated all the facts in his evidence. As regards the delay, he narrated the following facts in para 9B, which we quote below :
" Without prejudice to right to claim that cause of action for filing the dispute only arose on 24.8.1991, i.e. after dismissal ::: Downloaded on - 09/06/2013 16:35:14 ::: 26 of dispute No. 420/69 (new dispute No. 839/90). I say that I believe the representation of the society that society will execute the sale-deed in my favour after the decision of dispute No. 420/69 (new dispute No. 839/90) and therefore I did not file any dispute till the decision of said case and, therefore, I was eagerly waiting under bonafide belief. Only after decision of the said case, having seen that society is not ready to execute the sale-
deed but trying to dispute of the plot by entering into negotiation with opponent no.3, the present dispute is being filed by me. I thus say and state that there are sufficient reasons for condonation of delay in filing the present dispute before this Hon'ble Court.
21. The aforesaid evidence has not at all been challenged in the cross-
examination. The dispute that was filed by Mr. T.B. Deo came to be dismissed on 24.8.1992 and then by Exh. D-4 dated 22.8.1992 the appellant asked for execution of the sale-deed in his favour. The appellant also gave a telegraphic notice dated 26.8.1993 asking the society to execute the sale-deed but there was no response at all and lastly he filed a dispute on 7.9.1993.
22. From the above discussion, the following conclusions which ought to have been drawn by the courts below must be drawn :
(i) during the entire correspondence between the appellant and the society from 15.8.1961 till 26.8.1993 and even ::: Downloaded on - 09/06/2013 16:35:14 ::: 27 when the society was in the control of the Administrator there was not even a whisper or even a casual mention that the appellant who was forcefully pursuing his cause for execution of the sale-deed being a member was not a member of the society and therefore had no reason to ask for execution of the sale-deed and this state of affairs went on till the dispute was filed on 7.9.1993 and it is for the first time in written statement the society took a stand in the written statement that the appellant was not a member.
(ii) Except for filing the written statement and amended written statement the society tactfully and in a most strategic manner chose not to adduce any oral evidence in support of its written statement/defence and also chose to withhold the proceedinge books, cash books, proceeding of confirmation of resolutions and all the relevant record of the society despite being called upon to produce the same by the disputant by giving notice to produce the documents, notice to admit the documents and so on and so forth. The society indulged in a calculated plan to withhold every important documents and information from the court though they were in its custody with an eye on the plea to be raised that the appellant failed to discharge the initial burden of proof that he was a member of the society. Hence the courts below ought to have draw adverse inference against respondent no.1/society.
::: Downloaded on - 09/06/2013 16:35:14 ::: 28(iii) the admitted fact that the society had decided the price of the plot at 37 naise paise per square foot and looking to the area that was shown in Plot J-1, i.e. 7100, the costs would be Rs.2627 + 50 + 5 + 100 = 2782 below the amount of Rs.3105/-
which was deposited by the appellant under the said Receipt No. 177 (Exh. D-1) dated 25.9.1961.
(iv) If based on Ex. D-1 it was the case of the society that under said receipt Ex. D-1, the society had received only the price of the plot and not the share money or membership fee so that the appellant could have claimed to be a member, it is significant to note that right from 1961 till this date the society admittedly has not taken any steps nor communicated to the appellant that he had paid excess amount than the price of the plot and that the same was being refunded to him or that he should come and take the excess amount. This conduct on the part of the society and the stand in the entire correspondence between the society and the appellant that because of the pendency of the suit the sale-deed could not be executed and that the society realised that there was injustice to him, show that the society always treated him as member. The language used in the correspondence by the society so also the resolution dated 15.8.1961, to our mind, clearly shows that the society for all the purposes treated the appellant as a member of the ::: Downloaded on - 09/06/2013 16:35:14 ::: 29 society and never wanted to take the stand that he was not a member of the society or that his membership at any point of time was cancelled or that he was disentitled for membership of the society for any reason. On the contrary, the language used in the resolution dated 15.8.1968 clearly shows that the society decided to issue a sale certificate in favour of the appellant who had already paid the amount towards the share money etc. The very 4th line of the resolution dated 15.8.1968 clearly shows about the payment of share money and admission fee in the year 1961. We quote below a few sentences from the said resolution -
"These persons have paid their share money and admission fee in 1961. Their applications so far they relate to membership were in order according to law and bye-laws of the society."
This mention in the resolution itself fully falsifies the case of the society that the appellant never paid the share money and additional fee for membership. The reason given by the courts below that the appellant did not produce any application or produce any resolution admitting him as a member, in our opinion, is a lame excuse to support the unjustifiable reasons given by them in the light of the above recitals. As earlier pointed out, the application for membership or the resolution etc. were not produced by the society deliberately before the courts which were ::: Downloaded on - 09/06/2013 16:35:14 ::: 30 in their custody and if at all they were not in their custody then they were never prevented to depose on oath before the courts below about non-existence thereof.
(v) The letters written by the society to the appellant right from 1961, referred by us above, above clearly show that the Society full recognized the appellant as a member, entitled to plot and further that the plot was allotted to him and that he was treated as a member of the society and everything was alright in his case, but the sale-deed could not be executed in his favour because of pendency of litigation in the courts below. No other reason was given in the entire correspondence. It is further not in dispute that there is not a single letter or resolution produced by the society to show that at any point of time the appellant was told that the sale-
deed would not be executed in his favour for any good reason and his claim for execution of sale-deed was rejected outright for any other reason. On the contrary, the correspondence shows that the sale-deed would not be delayed even by a day but could not be executed because of pendency of litigation in the court. Therefore, in the absence of any refusal to execute the sale-deed as demanded by him right from 1961, he filed the dispute on 7.8.1993 i.e. immediately after the dispute filed by Mr.T.B.Deo was dismissed on 24.8.1992 wherein he was defendant no.13 and injunction was ::: Downloaded on - 09/06/2013 16:35:14 ::: 31 operating. Therefore it was well within six years from the date of cause of action which accrued to him after dismissal of dispute filed by Mr.Deo.
23. A finding has been recorded by the Cooperative Court in para 19 of its judgment, which we quote as under :
"However, in the present case, it is not proved that the society has cancelled the allotment but from the pleading it appears that the nominee of the Registrar, Cooperative Societies has quashed and set aside the allotment. Therefore, there is no question of issuing notice by the society to the disputant and hence these authorities are not applicable in the present dispute."
We also quote para 20 from the said judgment -
"The society has nowhere contended that it has cancelled the resolution dated 13.8.1961 or 20.10.1961. Therefore, there is no substance in the contention of the disputant that the opponent society has passed the resolution in third week of August 1993 cancelling the allotment of Plot No. J-1 in his favour."
24. Thus it is clear that there is no cancellation of plot J-1 which was allotted to the appellant and the said finding of fact is binding on the society. It is unfortunate that the Cooperative Court ignored the fact that the order made by the nominee of the Registrar was admittedly quashed and set aside by the Co-
operative appellate tribunal but that reason has been incorporated by the trial ::: Downloaded on - 09/06/2013 16:35:14 ::: 32 Court in order to dismiss the dispute . We quote below relevant portion from 18 of the judgment of Co-operative Court -
"But the disputant himself has stated that Shri T.B.Deo has raised dispute as to the resolution dated 13.8.1961 and 20.10.1961 but he has also not produced on record any evidence as to the orders passed in dispute raised by Shri T.B.Deo. Therefore, there is no any alternative but to believe the contention of the opponents no.1 and 2 that the nominee of the Registrar has quashed and set aside the resolution dated 13.83.1961 and 20.10.1961."
25. It is unfortunate that the Cooperative Court relied on the order made by the nominee of the Registrar which was already quashed and set aside by the Cooperative appellate Tribunal and which has become final. It is thus clear from the above that on facts as well as from the evidence- oral as well as documentary, the conduct of the society, in our opinion, is deprecable, arbitrary, causing harassment to a senior citizen, and having no regard for rule of law.
From the above, we therefore record a clear finding in view of the perversity in the matter of decision of a dispute by the courts below that we are entitled to interfere in letters patent jurisdiction in view of the above peculiar situation.
We, therefore, hold that the appellant was a member of the society and was allotted plot J-1 in his favour and was entitled to the execution of the sale-deed in his favour by the society. The finding recorded in relation to limitation in the ::: Downloaded on - 09/06/2013 16:35:14 ::: 33 above background is totally erroneous on law as well as on facts and has to be rejected. We hold that the dispute was very well within limitation.
26. Since we have held that the appellant was a member of the society, the dispute was maintainable before the Cooperative Court.
Consequently, we set aside the finding of the courts below that the dispute was not maintainable.
27. The submission made by Mr.Kshirsagar, learned counsel for respondent no.3, that the appellant did not challenge the resolution admitting respondent no.3 as a member and thereafter obtained a sale-deed from the society which has been placed on record for the first time and that he is a bona fide purchase for value though he was respondent in the dispute filed by the appellant, is liable to be wholly rejected. The only answer is that respondent no.3 cannot set up any case in view of the doctrine of lis pendens. Whether or not he was admitted as a member of the society in the year 1993 or there was execution of the agreement of sale and thereafter sale-deed in his favour in 2010, neither the resolution admitting him as a member nor the sale-deed cannot at all bind the appellant. Whether the resolution admitting him as a member or agreement of sale executed were challenged or not would make no difference since the doctrine of lis pendens would squarely apply. We find that the sale-deed dated 16.9.2010 that was executed by the society in favour of respondent no.3 shows the area of plot J-1 as 743.22 sq. mtrs. (7997.05 sq.ft.) as per Nagpur Improvement Trust Release Letter No. EE (SW), 227, dated ::: Downloaded on - 09/06/2013 16:35:14 ::: 34 1.7.1997 which appears to be subsequent in point of time. The appellant would be entitled to the same area as he was allotted Plot No. J-1 of which area finally Nagpur Improvement Trust has determined as 7997.05 sq.ft. Respondent no.3 was a party to the dispute filed by appellant from day one and hence is not a bona fide purchaser. We, therefore, reject the claim of respondent no.3 made before us.
28. The submission about the appellant acquiring membership and plot in the year 1971 in other society is liable to be rejected since his membership first in point of time, i.e. in the year 1961, with respondent no.1/ society must prevail. Further there was no bar in the bye-laws of both socieites to prohibit dual membership at least in 1971. We thus reverse the said finding also. We further find that appellant would not be liable to pay stamp-duty on the sale-deed at the rate fixed by the Government after 24.8.1992 when dispute filed by Mr.T.B.Deo was dismissed and the respondent no.1 had no reason not to execute the sale-deed. Hence, we hold that the respondent no.1/society shall pay the difference of stamp duty on the sale-deed at the rate fixed by the Government after 24.8.1992.
29. In the result, we make the following order.
(i) Letters Patent Appeal No. 396 of 2009 is allowed with costs.
(ii) Impugned judgments in Dispute No. 713 of 1993 dated 20.3.2007 passed by the Cooperative Court, Nagpur, Appeal No. 35 of 2007 passed by the Cooperative Appellate Court, Mumbai, on 24.7.2008 and impugned judgment in ::: Downloaded on - 09/06/2013 16:35:14 ::: 35 Writ Petition No. 4834 of 2008 dated 15.6.2009 passed by the learned Single Judge of this Court are quashed and set aside.
(iii) Dispute No. 713 of 1993 is decreed with costs.
(iv) Award is passed in favour of the appellant and against the
respondents 1 to 3. Respondent no.1/society is directed to execute the sale-deed in respect of Plot No. J-1, area 743.22 sq. mtrs. (7997.05 sq. ft.) mouza Ajani, C.S. No. 459, Sheet No. 85 as per release letter No. EE(SW), 227, dated 1.7.1997 within a period of twelve weeks from today and also to put the appellant in possession thereof.
(v) Respondent no.3 is directed to handover peaceful possession of the suit plot within twelve weeks. Upon failure, the Award shall be executed through Court.
(vi) The difference of stamp duty after 24.8.1992 fixed by the Government shall be paid on the sale-deed by respondent no.1/society.
(vii) Award be drawn up accordingly. Certificate under Section 98(a) of the Maharashtra Cooperative Societies Act, 1960 be issued.
JUDGE JUDGE
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