Bombay High Court
Pusad Urban Cooperative Bank, Yavatmal ... vs Piyush S/O Vikram Gholve And Others on 26 July, 2019
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
1 wp7121.18(j)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.7121 OF 2018
Pusad Urban Co-operative Bank,
Sadar Squire branch, through its Branch Manager,
Yavatmal, Tq. and Dist. Yavatmal.
.......PETITIONER
...V E R S U S...
1] Piyush s/o Vikram Gholve,
Aged about 26 years, Occu:Agriculturist,
Yavatmal.
2] Ku. Shivani d/o Vikram Gholve,
Aged about 20 years, Occu: Education.
3] Sau. Meena w/o Vikram Gholve,
Aged about 46 years, Occu: Agriculturist
and Household, Respondent Nos. 1 to 3
R/o Nagpur bypass road, Dorly,
Tq. and District Yavatmal.
4] Shri Shrirang Uttam Gholve,
Aged about 61 years,
Occu: Agriculturist, R/o Sardar Chowk,
Chhoti Gujari, Yavatmal, Tq and
District Yavatmal.
5] Shri Vikram s/o Uttam Gholve,
Aged about 53 years, Occu: Agriculturist.
6] Shri Vasanta s/o Uttam Gholve,
Aged about 50 years, Occu: Agriculturist.
6-A] Gaurav s/o Vasanta Gholve,
Aged about 23 years, Occu: Agriculturist.
6-B] Mohit Vasanta Gholve,
Aged about 16 years, Occu: Education,
through natural guardian father of Respondent No.6.
::: Uploaded on - 31/07/2019 ::: Downloaded on - 15/04/2020 13:31:00 :::
2 wp7121.18(j)
7] Shri Sanjay s/o Uttam Gholve,
Aged about 46 years, Occu: Agriculturist.
7-A] Ku. Rutuja Sanjay Gholve,
Aged about 18 years,
Occu: Education.
7-B] Krushna s/o Sanjay Gholve,
Aged about 10 years, Occu: Education
through natural guardian father of Respondent No.7.
8] Smt Kesarbai w/o Uttam Gholve,
Aged about 84 years, Occu: Agriculturist,
Respondent Nos. 5 to 8 all R-5 to 8
R/o Nagpur by pass road, Dorli
Tq. and District- Yavatmal.
9] Sau. Sulochana w/o Eknath Sanap,
Aged about 50 years, Occu: Agriculturist,
R/o Wanjari Fail, Yavatmal, Tq. & Dist. Yavatmal.
10] Asstt. Registrar, Sahakari Sanstha,
Yavatmal, Administrative Building,
Collector Office, Yavatmal. ....... RESPONDENTS
--------------------------------------------------------------------------------------------------------------------
Shri Abhay Sambre, Advocate for petitioner.
Shri A.B.Patil, Advocate for respondent nos. 1 to 3.
None for other respondents though served.
--------------------------------------------------------------------------------------------------------------------
CORAM : A.S.CHANDURKAR, J.
DATED : 26.07.2019
ORAL JUDGMENT
Rule. Heard finally with consent of the counsel for the parties.
2. At the outset, Shri A.B.Patil, learned counsel for the respondent nos. 1 to 3 submits that costs of Rs.25,000/- as imposed by the order dated ::: Uploaded on - 31/07/2019 ::: Downloaded on - 15/04/2020 13:31:00 ::: 3 wp7121.18(j) 26.11.2018 have been deposited with the petitioner - Bank on 25.02.2019. He has produced the receipt in that regard. Hence statement to that effect is accepted.
3. The challenge raised in the present writ petition is to the order passed below Exhibit 7 by the trial Court allowing filing of the suit in question by dispensing with the notice period of two months under Section 164 of the Maharashtra Co-operative Societies Act, 1960 ( for short, 'the said Act').
4. The respondent nos. 1 to 3 are the original plaintiffs who have filed a suit for partition and separate possession of joint family properties. Before filing the suit in question, the plaintiffs issued a notice on 27.07.2018 to the petitioner-Bank under Section 164 of the said Act stating therein that they intended to approach the Civil Court so as to raise a challenge to the proposed auction of some of the properties. This notice was received by the Bank on 30.07.2018. Reply thereto was given on 03.08.2018 stating therein that the auction was proposed on 10.08.2018. Hence on the same date the suit in question came to be filed along with the application below Exhibit 7 for dispensing with the notice period. By the impugned order, the trial Court has allowed that application.
5. I have heard the learned counsel for the petitioner and the learned counsel for the respondent nos. 1 to 3. The learned counsel for the ::: Uploaded on - 31/07/2019 ::: Downloaded on - 15/04/2020 13:31:00 ::: 4 wp7121.18(j) respondent nos. 1 to 3 by relying upon the decision in B.Y.Chavan and another Vs. Association of Tenants of the Bombay Catholic Housing Society and others, 2001(4) Mh.L.J. 935 submits that the Bank by its conduct has waived the period of notice in view of the fact that it had issued reply on 03.08.2018 and it did not intend to postpone the auction that was scheduled on 10.08.2018. In the alternative, it is submitted that the name of the defendant no.7-Bank be permitted to be deleted with a liberty to give notice under Section 164 of the said Act afresh and thereafter seek its addition.
6. The learned counsel for the petitioner however by relying upon the decision in Sahara India Commercial Corporation Ltd. Vs. B.Jeejeebhoy Vakharia and Associates, 2008(5) Mh.L.J. 803 and Tirupati Ginning and Pressing Factory Vs. M/s. Balaji Ginning and Pressing Industry Akola and others, submits that in absence of any prior notice under Section 164 of the said Act, the suit itself was not maintainable.
7. It is found that presently there is no notice of auction by the petitioner-Bank and hence in the facts of the present case, I am inclined to follow the observations as made in para 10 of the decision in B.Y.Chavan and another (supra). On that basis, the plaintiff could be permitted to cure defect by deleting the name of the Bank and thereafter seek to add it subsequently after giving notice under Section 164 of the said Act. ::: Uploaded on - 31/07/2019 ::: Downloaded on - 15/04/2020 13:31:00 :::
5 wp7121.18(j)
8. Accordingly, the following order is passed :
(1) The order dated 17.08.2018 passed by the trial Court below Exhibit 7 is set aside.
(2) On the motion made by the original plaintiffs-
respondent nos. 1 to 3, the name of the defendant no.7-the present petitioner is permitted to be deleted from the array of parties in R.C.S.No.114/2018.
(3) It is open for the plaintiffs to issue notice under Section 164 of the said Act to the Bank and thereafter seek its joinder in the suit. The contentions of the parties in that regard are kept open.
(4) The writ petition is allowed in aforesaid terms with no orders as to costs.
JUDGE Andurkar..
::: Uploaded on - 31/07/2019 ::: Downloaded on - 15/04/2020 13:31:00 :::