Bombay High Court
Bharat H. Mehta vs The Secretary, The Jai Hind Co-Op. ... on 20 April, 2000
Equivalent citations: AIR2000BOM422, (2000)2BOMLR839, 2000(4)MHLJ461, AIR 2000 BOMBAY 422, (2000) 4 MAH LJ 461, (2000) BOM CR 724, 2000 (2) BOM LR 839, 2000 BOM LR 2 839
Author: S.A. Bobde
Bench: S.A. Bobde
JUDGMENT S.A. Bobde, J.
1. This L.P.A. is against the order of the learned single Judge of this Court dated 11th April, 2000 dismissing the appellant's writ petition under Articles 226 and 227 of the Constitution of India. By the writ petition he had challenged the order in appeal dated 3rd April, 2000 under Section 152A of the Maharashtra Co-operative Societies Act, 1960 (for short the said Act) refusing to set aside the order of respondent No. 2 Returning Officer rejecting the appellant's nomination form on the ground that he is a defaulter in respect of the society's dues in terms brief, the appellant's contention in that he is not liable to be treated as a defaulter in respect of the dues of the society and is, therefore, entitled to contest the election to the Managing Committee due to be held on 24th April, 2000. The appellant says that he has discharged the entire liabilities of the society, that is, he has cleared all the dues amounting to Rs. 9774/- and this is apparent from his letter dated 30th April, 1994 addressed to one Shri Rammohan Bidawatka, the then Secretary of the Society, enclosing a cheque for Rs. 8774/- and stating that the appellant has already paid Rs. 1000/- earlier in cash. It is this amount of Rs. 1000/- said to be paid by the appellant in cash, which is the bone of contention between the parties. The society has denied that the sum of Rs. 1000/- was received by the Society.
2. After the appellant, an advocate, and others filed their nomination forms, in scrutiny it was found that the appellant's nomination form was liable to be rejected on the ground that the society's dues are outstanding. In accordance with byelaw 6(1) contained in the byelaws of the society, the returning officer rejected the nomination from by his order dated 21st March, 2000 on the ground that the society's dues remained outstanding.
3. The appellant carried the appeal to the Registrar of the Cooperative Socities, Mumbai under Section 152A of the said Act. After hearing both sids, by a reasoned order dated 3rd April, 2000, the Asstt. Registrar, who heard the appeal, found that there was no reason to interfere with the order dated 21st March, 2000 made by Shri Suresh Nathani rejecting the nomination. In the appeal filed under Section 152A of the Act, the Asstt. Registrar found that the respondent was in default of Rs. 1,000/- payable to the society on account of the dues of the society. In the appeal the Asstt. Registrar, has considered all the contentions of the appellant and found that the appellant had no receipt for the amount of Rs. 1000/- which he claims to have paid to the soceity by cash and that he had no produced the receipt even during the hearing of the appeal.
4. The Society had contended before the Asstt. Registrar that it had taken a decision to recover from each of its members an amount equal to 207 months' rent to be paid to landlord for obtaining ownership and also 54 months' rent towards stamp duty, registration fee and other charges. The appellant had paid an amount of Rs. 8,774/- in respect of 54 months' rent but had not been able to produce any receipt of payment of Rs. 1,000/-. The Asstt. Registrar has also advered to the society's conteniton that in accordance with the decision taken in the Annual General Meeting held on 9th Aug. 1997, it was resolved that any member who is found in default of the amount of rent for the aforesaid 207 months and 54 months would be liable to pay interest at the rate of 15% with effect from 1st April, 1995 and that it is on this basis that bill cum-demand notice dated 16th Nov. 1999 was issued to the appellant. The demand notice clearly stated that it may be treated as the demand bill under the byelaws of the society. The demand notice further shows the balance of Rs. 9,774/- due from the appellant. In these circumstances, on finding that the appellant could not produce the receipt for the amount said to be paid by him in cash, the Asstt, Registrar dismissed the appeal under Section 152A of the Act.
5. Likewise, in the writ petition carried to this Court, the petitioner/appellant has failed to demonstrate that he had discharged the entire liability of the society and was not a defaulter. In particular, even before the learned single Judge, it was fairly conceded by the learned counsel for the petitioner that there was no receipt with the petitioner show-
ing that he had paid the disputed amount of Rs. 1000/- to the society.
6. The learned Counsel for the appellant Shri Soni has raised certain contentions before us. One of the contentions is that on the basis of the decision rendered by this Court in Ramesh Rajaram Patil v. Addl. Commr. Aurangabad Division the candidate is entitled to discharge the dues to the society even on the date of scrutiny. We are unable to apply the ratio of that case to the facts of the present case since that case was decided under Section 73FF(1)(c)(ii) of the Act whereas the present case arises under Section 73FF(1)(e) of the Act. Even otherwise, the ratio of that case has no application to the present case since, even on the date of scrutiny, the appellant did not clear the dues and kept on contending that he has already paid Rs. 1000/- by cash earlier. Shri Soni did try to persuade this Court to accept the offer of payment of dues at this stage but we consider it a belated offer, like the learned single Judge did. In this regard, reference may be made to Section 73FF(1)(e) where the period provided for paying up the dues of the society by the member who is in default is 3 months. Having regard to the fact that the notice of demand issued by the Society to the appellant in this case is dated 1st Nov. 1999 received by him on 16th Nov. 1999 and in view of the admitted position that till 15th Feb. 2000 the amount has not been paid, it is clear that there is no discharge of liability as required by law.
7. We are also not inclined to infer merely on the basis of the letter dated 30th April, 1994 written by the appellant to Shri Rammohan Bidawatka, the then Secretary, that the appellant had already, paid Rs. 1000/- to the society earlier. The appellant has said so in the letter, but that in our view is not sufficient to hold, having regard to the nature of the proceedings before us, that indeed the appellant had paid Rs. 1000/-. There was vehement opposition to the contention of the appellant that the said letter establishes that an amount of Rs. 1000/-was paid before 30th April, 1994 to the society. Shri Nagarsekar for the respondents contended that this was a letter written by the appellant to Shri Rammohan Bidawatka, the then Secretary of the society with whom he was on good terms and, therefore, not much probative value can be attached to the said letter. In any case, the learned Counsel for the respondents contended that the appellant had sufficient opportunity to prove the payment of outstanding amount of Rs. 1000/- or to clear it after the notice of demand was issued in Nov. 1999 instead of resting content with having written the letter dated 30th April, 1994. We would like to make it clear that issues such as the effect of the letterdated 30th April, 1994 and whether on the basis of such letter, it should be held that the appellant had already paid the amount of Rs. 1000/- are matters which can be appropriately gone into in an election dispute and not in a writ petition at this belated stage. Similarly, in these proceedings, we are unable to draw any conclusive inference from the document purporting to show members' balance as on 31st March, 1999 that no amount was due from the appellant.
8. The next contention of Shri Soni is that the notice of the demand given by the society in this case is not in accordance with the provisions of Section 73FF, and that the amount stated in the notice is incorrect particularly since even the amounts paid are included in the notice and shown as not paid. We are not inclined to find any fault with the rejection of nomination paper on this ground also. The notice of demand dated 1st Nov. 1999 does show a balance amount of Rs. 9,774/- of which Rs. 8,774/- seems to have been paid by the appellant. We find that in view of the fact that a demand is of an amount greater than that which is said to be due, it cannot be said that the amount of Rs. 1,000/- was not demanded thereby. Moreover, assuming that there was any defect in this demand, the appellant had sufficient time after 16th Nov. 1999 to reply to the notice cum-demand and point out during the entire intervening period of about three months or more how the amount demanded is not due to the society. During the period between the notice of demand and rejection of his nomination paper, the appellant had sufficient time to satisfy the society as to why not even the said amount of Rs. 1,000/- was due from him. In the circumstances, we are not inclined to interfere with the order of the learned single Judge upholding the rejection of the appellant's nomination form on this ground.
9. In this view of the matter, we are not inclined to interfere with the order of the learned single Judge and particularly in view of the remedy of an election petition available to the appellant, in which all the disputed facts can be resolved appropriately.
10. In the result, we agree with the learned single Judge refusing to interfere with the order passed in appeal under Section 152A of the Act by which the learned single Judge refused to exercise the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Accordingly, the Letters Patent Appeal is dismissed.
11. In the event of the appellant choosing to avial of the forum for resulting a dispute under the Act, we make it clear that all contentions would be open to him.
12. Civil Application No. 3090 of 2000 does not survive and hence rejected.