Bombay High Court
Sudhir Co-Operative Housing Society, ... vs Sharada W/O Vinayak Prabhune And Others on 22 August, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1884 OF 2019
( Sudhir Co-operative Housing Society Limited, Akola, Thr. Its President.
Vs.
Sharada w/o Vinayak Prabhune & Ors. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. V.G. Bhamburkar, Advocate for the Petitioner.
Mr. R.V. Malviya, Advocate for the Respondent No.1.
Ms. Mrunal Barabde, AGP for the Respondent Nos. 2 & 3/State.
CORAM: AVINASH G. GHAROTE, J.
DATED : 22nd AUGUST, 2022.
Heard Mr. Bhamburkar, learned counsel for the petitioner, Mr. Malviya, learned counsel for the respondent No.1 and Ms. Barabde, learned AGP for the respondent Nos. 2 and 3/State.
2. The petition challenges the judgment dated 30.11.2018 passed by the learned Cooperative appellate Court, Nagpur, whereby the judgment dated 09.03.2018 of the learned Cooperative Court, Akola, has been set aside and the petitioner/Society has been directed to execute and register the sale deed in favour of the respondent No.1. A further declaration has also been granted that the petitioner/Society has no right to claim excess charges more than Rs. 2.50 paisa per sq.ft. in respect of the adjacent open space as described in the dispute.
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3. Mr. Bhamburkar, learned counsel for the petitioner, raises two basic grounds, first is that the respondent No.1, by the dispute was claiming specific performance which was a relief, which was not permissible to have been entertained by the learned Cooperative Court under Section 91 of the Maharashtra Co-operative Societies (for short "MCS") Act. The next contention is that the dispute under Section 91 of the MCS Act, was hit by Section 164 of the MCS Act.
4. Taking the second plea first, it would be pertinent to note, that Section 164 of the MCS Act, bars the filing of a suit before the Civil Court without a notice being given first. A dispute under Section 91 of the MCS Act, cannot by any stretch of imagination be considered to be a suit, in light of which, the contention cannot be accepted.
5. Insofar as the first contention, that the claim for specific performance, cannot be entertained in a dispute under Section 91 of the MCS Act, is concerned, what is material to note, is that it is an undisputed position that the petitioner is a Society and the respondent No.1 is its member. The petitioner/Society, by a resolution dated 10.02.1980, passed in its AGM had resolved that open space is adjacent to the allotted plots, be allotted to the adjacent plot holders on the rate indicated therein. The dispute filed before the learned Cooperative Court, seeks a relief of enforcement of this resolution passed by the AGM of the petitioner/Society 3 45.WP.1884-2019.odt by seeking execution of the sale deed in consonance thereof. A perusal of the judgment of the Cooperative Court, would indicate that all the issues as raised therein from issue Nos. 1 to 7 have been answered in favour of the respondent No.1. It is only on issue No. 9, the dispute has been rejected accepting the plea that the Cooperative Court, could not entertain a plea for specific performance. As indicated above, the plea is for enforcement of the resolution dated 10.02.1980 passed by the AGM of the petitioner/Society which is clearly an action, which falls within the expression "Business of a Society" as occurring in Section 91 (1) of the MCS Act, as it is not in dispute that it is the business of the Society to lay a layout and allot plots on land to its members. In this view of the matter, I am not inclined to accept the first submission also.
6. It is next contended, that the respondent No.1, is liable to pay the rate for the adjacent land at today's rate and not at the rate what was decided by the AGM in its meeting dated on 10.02.1980 on the ground that the amount was deposited by the respondent No.1 belatedly. Mere belated deposit of the amount, would not entitle the petitioner/Society, to claim consideration at today's rate for the reason that the petitioner/Society, is bound by the resolution passed in its AGM. This position, has been succinctly considered by the learned Cooperative appellate Court in its judgment dated 30.11.2018, in view of which, I do not see any merit in the petition.
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7. The petition is accordingly dismissed. No costs.
JUDGE SD. Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:23.08.2022 20:17