Gujarat High Court
Harikrushnadas Chhaganlal Nanalal & ... vs Vinodchandra G Vaghela on 4 March, 2021
Author: Vineet Kothari
Bench: Vineet Kothari
C/LPA/999/2010 JUDGMENT Dt. 04.03.2021
HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL
Versus
VINODCHANDRA G VAGHELA & 1 other(s)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 999 of 2010
In R/SPECIAL CIVIL APPLICATION NO. 9900 of 2003
HONOURABLE DR. JUSTICE VINEET KOTHARI sd/
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of YES
the judgment ?
4 Whether this case involves a substantial question of YES
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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HARIKRUSHNADAS CHHAGANLAL NANALAL
& ISHWARDAS MOHANLAL
Versus
1. VINODCHANDRA G VAGHELA
2.
THE MARUTI COOPERATIVE HOUSING
SOCIETY LTD., PART II
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C/LPA/999/2010 JUDGMENT Dt. 04.03.2021
HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL
Versus
VINODCHANDRA G VAGHELA & 1 other(s)
Appearance:
MS DHARA SHAH for the Appellant(s) No. 1
MR SHIVANG M SHAH(5916) for the Appellant(s) No. 1
MR MANISH SHAH for the Respondent(s) No. 2
MR VM DHOTRE(1089) for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
And
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 04/03/2021
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This intracourt Appeal is directed against the Judgement and Order dated 11.01.2010 whereby the learned Single Judge dismissed the Special Civil Application No. 9900 of 2003 filed by the Appellant Trust, namely, Harikrushnadas Chhaganlal, Nanalal, Hargovinddas and Ishwardas Mohanlal Seva Samaj Trust (hereinafter referred to as 'the Trust') and held that the Resolution of the Respondent Society namely Maruti Cooperative Housing Society Limited., PartII to sell the common plot admeasuring 400 sq. yds in favour of the Appellant Trust could not have been passed Page 2 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) and therefore in a Lavad Suit (Lavad Suit No. 2256 of 1994) purportedly under Section 96 of the Gujarat Cooperative Societies Act, 1961, the said Resolution could not be passed by the Society and the consequential actions taken were also liable to be set aside.
2. The facts in brief are that the Respondent Maruti Cooperative Housing Society Limited passed a unanimous Resolution No. 12 in its General Body Meeting on 13.08.1992 to sell the common plot admeasuring 400 sq. yards to the Appellant Trust at the rate of Rs. 200/ per sq. yard for construction of a common 'Satsang Hall' for religious purposes and accordingly for a consideration of Rs. 80,001/ paid by the Trust, a Sale Deed was executed in favour of the Appellant Trust by the Maruti Cooperative Housing Society Limited on 26.05.1993 and accordingly the possession was handed over to the Appellant Trust on which construction of the said 'Satsang Hall' was also made. Subsequently, one disgruntled member of the Society, namely, Mr. Vindochandra G. Vaghela filed the aforesaid Lavad Suit No. 2256 of 1994 challenging the power of the Respondent Society to sell the common plot to the Page 3 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) Appellant Trust and the Board of Nominees vide order dated 23.04.1999 under the Gujarat Cooperative Societies Act, 1961 held in favour of the Complainant Mr. Vindochandra G. Vaghela and quashed and set aside the said Resolution of the Society. The Appeal filed by the Appellant Trust before the Cooperative Tribunal namely Appeal No. 265 of 1999 also came to be dismissed on 17.06.2003. Aggrieved by the said Order, the Appellant Trust approached the learned Single Judge by way of the aforesaid writ petition being Special Civil Application No. 9900 of 2003 which too came to be dismissed by the learned Single Judge on 11.01.2010.
3. Aggrieved by the same, the Appellant Trust has filed the present intracourt Appeal.
4. Ms. Dhara Shah, learned Counsel appearing for the Appellant Trust urged before us that the Registered Sale Deed in favour of the Appellant Trust executed by the Respondent Maruti Cooperative Housing Society Limited on 26.05.1993 could not be set aside by the Board of Nominees or the Tribunal constituted under the Page 4 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) provisions of the Gujarat Cooperative Societies Act, 1961 as it does not fall within the scope of Section 96 of the Act which covers only 'a dispute touching the constitution, management or business of the Society' and the contract of sale supported by the unanimous Resolution of the General Body Meeting could not have been quashed and set aside by way of an indirect challenge made only to the Resolution passed by the Respondent Society to sell the said common plot in favour of the Appellant Trust and that too for constructing a 'Satsang Hall' for religious purposes, which was also commonly used by all the members of the Society, who are not even charged any fees for entering in the 'Satsang Hall' constructed by them.
4.1 She urged that only a competent Civil Court has the power to set aside the registered Sale Deed and the Authorities created under the Gujarat Cooperative Societies Act of 1961 do not have any such power. She also submitted that there were in fact two common plots in the land owned by the Society and drawing our attention to the map of the said land owned by the Society, the learned Page 5 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) Counsel pointed out that another common plot was still available with the Society for other common amenities and facilities and therefore this sale in favour of the Appellant Trust was perfectly legal and justified and subserved the purpose of common facilities for the members of the Society itself and therefore merely a disgruntled member of the Society who may not be satisfied with the said Resolution of the Society could not be permitted to assail such Resolution No. 12 dated 13.08.1992 and indirectly challenge the sale deed itself. She submitted that the learned Single Judge as well as the Authorities below have fallen into error in holding that such a Resolution could not be passed by the Society and the common plot could not have been sold to the Appellant Trust. She submitted that the said construction was raised way back in the year 1993 and the said Satsang Hall is being used for common purposes.
5. On the other hand, learned Counsels for the Respondents Mr. Manish Shah appearing for the Society and Mr. V.M. Dhotre appearing for the Respondent Mr. Vinodchandra G. Vaghela supported the impugned Order of the learned Single Judge and the Authorities below and submitted that the common plot meant for Page 6 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) common facilities could not have been sold to the Appellant Trust for the said purposes and the learned Single Judge was justified in upholding the orders passed by the lower Authorities.
6. Having heard learned Counsels for the parties, we are satisfied that the present intracourt Appeal deserves to be allowed and, with great respects, the Order of the learned Single Judge cannot be sustained so also the Orders passed by the Board of Nominees and the Cooperative Tribunal.
6.1 Section 96 of the Gujarat Cooperative Societies Act, 1961 contained in Chapter IX of the said Act provides for Procedure for Deciding Disputes touching the constitution, management or business of a Society by the prescribed Authorities namely Board of Nominees with a further appeal provided to the Cooperative Tribunal. The said Section 96 is quoted below for ready reference.
"Chapter IX Procedure for Deciding Disputes
96. Disputes. (1) Notwithstanding anything contained Page 7 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) in any other law for the time being in force, any dispute touching the constitution, management or business of a society shall be referred in the prescribed form either 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 Registrar, if the parties thereto are from amongst 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;
(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society;
(c) a person, other than a member of the society, who has been granted loan by the society, or with whom the society has or had transaction under the provisions of Section 46, and any person claiming through such a person;
(d) a surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society under Page 8 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) Section 46, whether such a surety is or is not a member of the society;
(e) any other society, or the Liquidator of such a society.
(2) When any question arises whether for the purposes of subsection (1) a matter referred to for decision is a dispute or not, the question shall be considered by the Registrar, whose decision shall be final.
Explanation I. For the purposes of this sub section, a dispute shall include
(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such a debt or demand be admitted or not;
(ii) a claim by a surety for any sum or demand due to him from the principal borrower in respect of a loan by a society and recovered from the surety owing to the default of the principal borrower, whether such a sum or demand be admitted or not;
(iii) a claim by a society for any loss caused to it by a member, past member, or deceased member, by any officer, past officer or deceased officer, by any agent, past agent or deceased agent, or by any Page 9 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) servant, past servant or deceased servant, or by its committee, past or present whether such loss be admitted or not;
(iv) a refusal or failure by a member, a past member or a nominee, heir or legal representative of a deceased member, to deliver possession to a society of land or any other asset resumed by it for breach of conditions of the assignment. Explanation II. For the purposes of this section, the expression "agent" includes in the case of a housing society, an architect, engineer or contractor engaged by the society."
6.2 Sections 98 and 99 of the Gujarat Cooperative Societies Act, 1961 also are relevant for controversy in hand and therefore these provisions are also quoted below for ready reference.
"98. Settlement of disputes. (1) If the Registrar is satisfied that any matter, referred to him is a dispute, within the meaning of Section 96 the Registrar shall, subject to the rules, decide the dispute himself, or refer it for disposal to a nominee, or a board of nominees, appointed by the Registrar :
Provided that no person who is connected with a Page 10 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) dispute or with the society at any stage or has previously inspected the society or audited its accounts shall be appointed as a nominee or as member of the board of nominees to settle the dispute.
(2) Where any dispute is referred under subsection (1) for decision to the Registrar's nominee or board of nominees, the Registrar may at any time, for reasons to be recorded in writing withdraw such dispute from his nominee, or board of nominees, and may decide the dispute himself, or refer it again for decision to any other nominees, or board of nominee, appointed by him.
(3) Notwithstanding anything contained in Section 96, the Registrar may, if he thinks fit, suspend proceedings in regard to any dispute, if the question at issue between a society and a claimant or between different claimants, is one involving complicated question of law or fact, until the question has been tried by a regular suit instituted by one of the parties or by the society. If any such suit is not instituted within two months from the Registrar's order suspending proceedings, the Registrar shall take action as is provided in subsection (1).
99. Procedure for settlement of disputes and power of Registrar, his nominee or board of nominees. Page 11 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) (1) The Registrar, or his nominee or board of nominees, hearing a dispute under Section 98 shall hear the dispute in the manner prescribed, and shall have power to summon and enforce attendance of witnesses including the parties interested or any of them and to compel them to give evidence, and to compel the production of a documents by the same means and as far as possible in the same manner as provided in the case of a Civil Court by the Code of Civil Procedure, 1908 (V of 1908).
(2) Except where a dispute involves complicated question of law or fact, no legal practitioner in his capacity as a legal practitioner or as person holding a power of attorney shall be permitted to appear on behalf of any party at the hearing of a dispute.
(3) (a) If the Registrar or his nominee or board of nominees is satisfied that a person, whether he be a member of the society or not, has acquired any interest in the property of a person who is a party to a dispute, he may order that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Registrar or his nominee or board of nominees shall be binding on the party so joined, in the same manner as if he were on original Page 12 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) party to the dispute.
(b) Where a dispute has been instituted, in the name of the wrong person or where all the defendants have been not included, the Registrar or his nominee or board of nominees may, at any stage of the hearing of the dispute if satisfied that the mistake was bona fide, order any other person to be substituted or added as a plaintiff or a defendant, upon such terms as he thinks just.
(c) The Registrar, his nominee or board of nominees may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Registrar, his nominee or board of nominees, as the case may be, to be just, order that the name of any party improperly joined whether as plaintiff or defendant be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Registrar, his nominee or board of nominees as the case may be, may be necessary in order to enable the Registrar, his nominee or board of nominees effectually and completely to adjudicate upon and settle all the questions involved in the dispute, be added.
(d) Any person who is a party to the dispute and entitled to more than one relief in respect of the same cause of action may claim all or any of such Page 13 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) reliefs; but if he omits to claim all such reliefs, he shall not forward claim for any relief so omitted, except with the leave of the Registrar, his nominee or board of nominees.
[(4) Notwithstanding anything contained in sub sections (1), (2) and (3), the following disputes or class of disputes, if the plaintiff so desires, shall be decided summarily by the Registrar, or his nominee or board of nominees, in such manner as may be prescribed, namely :
(a) any dispute for recovery of debt upon promissory note, hundi, bill of exchange or bond, with or without interest, whether agreed upon under such instrument or under the byelaws;
(b) any dispute for recovery of a fixed sum of money or in the nature of debt, with or without interest, arising on a written contract;
(c) any dispute for recovery of price of goods sold and delivered, where the rate, quality and quantity are admitted in writing;
(d) any dispute for recovery of dues payable by a member of a housing society towards contribution for construction of the house, or any dispute in respect of repayment of any loan, Page 14 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) interest or loan, ground rent, local authority taxes, sinking fund, water charges, electrical charges, maintenance and upkeep charges or charges for other services rendered by the society and the interest on such arrears, payable under the written agreement or under the byelaws.
(5) (a) The defendant shall not be entitled to defend the dispute unless he obtains leave from the Registrar, his nominee or, as the case may be, the board of nominees, in such manner as may be prescribed.
(b) The Registrar, his nominee or board of nominees may grant the leave under clause (a) on such conditions, as he thinks fit.
(c) The Registrar, his nominee or board of nominees shall not refuse the leave to defend the dispute unless he is satisfied that the facts disclosed by the defendant do not indicate that he has substantial defence to raise or that the defence intended to be put up by him is frivolous or vexatious.
(d) Where the defendant fails to obtain such leave or fails to appear or defend the dispute in pursuance of such leave, the averments made in the plaint and documents produced therewith shall be deemed to have been admitted by' the defendant :
Page 15 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022
C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) Provided that the Registrar, his nominee or board of nominees in his discretion requires any fact so admitted to be proved otherwise than by such admission.
(e) Where the conditions on which leave to defend is granted are not complied with by the defendant, the Registrar, his nominee or, as the case may be, board of nominees may pass an award against him, as if he has not been granted such leave.
(6) The Registrar, his nominees or, as the case may be, board of nominees shall under special circumstances set aside the award passed by him and if necessary stay or set aside execution, and may grant leave to the defendant to appear and defend the disputes, if it seems reasonable so to do, and on such terms as he thinks fit.]"
6.3 From a bare reading of the said provisions, it is clear that only the disputes relating to the constitution, management or business of a Cooperative Society can be decided by the Registrar or his Nominee or Board of Nominees. The said dispute may be between a Society, its Committee and its past member etc. as enumerated in Clauses (a) to (e) of Subsection (1) of Section 96. The Explanation I in Subsection (2) of Section 96 further enumerates that such dispute under Section 96 shall include a claim Page 16 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) by a Society for any debt or demand due to it from a member or a claim by a surety or a claim by a Society of any loss caused to it by its member or refusal or failure of a member to deliver possession to the Society of land or any other assets resumed by it for breach of conditions of the assignment.
7. The periphery and scope of disputes to be dealt by the Registrar or his Nominees or Board of Nominees therefore cannot exceed the limits set in the said provision of Section 96 of the Act.
Obviously, a contract of sale or a conveyance under a registered sale deed cannot fall within the four corners of Section 96, as once such a sale deed is executed and registered, it can no longer remain a dispute touching the constitution, management or business of a Society. The third party rights like in favour of the Appellant Trust in the present case are created and such civil rights or property rights cannot be said to be a dispute touching the constitution, management or business of the Society.
8. By an indirect challenge to the Resolution of the Society which could be a subject matter of Section 96 dispute cannot be examined Page 17 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) or adjudicated by the Registrar or his Nominees once the sale deed has been executed and registered. If the Resolution is quashed and set aside before any such Sale Deed is executed and registered, it could be possibly said that such a dispute between a member and the Society would fall within the scope of Section 96 of the Act. But such a dispute raised after the Sale Deed is executed and registered does not remain within the realm of jurisdiction of the Registrar or his Nominees or Board of Nominees under Section 96 of the Act. Only the competent Civil Court can entertain such a challenge in a properly instituted suit on valid grounds and is based on admissible evidence.
8.1 A useful reference here can be made to the decision of the Madhya Pradesh High Court in the case of Madhyam Vargiya Grih Nirman Sahakari Sanstha vs. Vasantrao and Another reported in AIR 1988 MP 94 in which the Court held as under:
"(6) Section 82 undoubtedly bars Civil Courts Jurisdiction in respect of any dispute required to be referred to the Registrar or his nominee or Board of nominees" under the Act. On referring to Section 64 we Page 18 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) read provision concerning "disputes" which are required to be referred to the Registrar as contemplated under Section 82 (1) (c). I quote sub section (1) of Section 64 and only the relevant Clause (c) thereof, on which reliance is placed by the trial Court in passing the impugned order :
"64. Dispute(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business of a Society or the liquidation of a Society shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following :
*****
(c) a person other than a member of the Society who has been granted a loan by the Society or with whom the Society has or had business transactions and any person claiming through such a person."
(7) The question to which the learned Additional District Judge ought to have addressed himself was whether the "dispute" which was raised in the plaint was such a dispute which touches only the "business" of the plaintiff Society inasmuch as the dispute evidently was not concerned either with "management" or "liquidation" of Page 19 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) the Society. The plaint averments afore referred does not, however, indicate that the dispute raised thereby touched only the business of the plaintiffSociety. The trial Court could not evidently have jurisdiction to try the suit if that had been the case and the plaint could be returned under clause (d) of Rule 11 of Order 7, Civil Procedure Code. Not only that any finding is there to be read in the impugned order in that regard I am prima facie not satisfied if the plaint averments merely raise a question which could only a touch the "business" of the plaintiffSociety. I say this for the simple and plain reason that a prayer is made by the plaintiffSociety claiming the relief of cancellation of the saledeed which the first defendant is said to have executed in favour of the second defendant, and by no stretch of imagination execution of that saledeed can be said to "touch the business" of the plaintiffSociety. Nothing more need be said at this stage in this matter as I have taken the view that this matter must go back to the trial Court for fresh decision to be rendered in accordance with law."
9. The Lavad Suit filed in the present case under the Act of 1961 before the Board of Nominees is not at par with the Civil Suit in a competent Civil Court. Nor a Quasijudicial Authority like the Page 20 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) Registrar or his Nominees can have any such power or be a substitute to a competent Civil Court even though they may enjoy some limited power of Civil Court, like summoning of witnesses etc. while adopting the procedure as given in Section 99 of the Act quoted above. Section 98(4)(d) of the Act enabling a party to claim all reliefs in respect of same cause of action does not extend any enabling power to the Registrar or Board of Nominees to grant relief of cancellation of Sale Deed as a consequential relief even if the questioned Resolution could be quashed by then.
10. A reference to Section 99(3)(a) of the Act was made by learned Counsel for the Respondents. That provision only provides that a person who may be a member of the Society or not, but if he has acquired any interest in the property of a person who is a party to a dispute, such a party may be joined in the lis and therefore he will be treated at par with the original party. The Authorities below therefore appear to have misconstrued this provision to enable the member Mr. Vinodchandra G. Vaghela to have acquired interest in the common plot of the Society by being a member of it and therefore he was not only entitled to maintain the said Lavad Suit before them Page 21 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) but was also entitled to the relief as claimed namely the setting aside of the Resolution No. 12 dated 13.08.1992. The Authorities below under the Act as well the learned Single Judge with great respects have failed to appreciate that the challenge to the said Resolution No. 12 passed by the Society although in a General Body Meeting by a unanimous Resolution has resulted in further civil contract of sale resulting in a valid sale of title of the plot in question in favour of the Appellant Trust within the meaning of Section 54 of the Transfer of Property Act, which conveyance deed cannot be wished away or ignored and any challenge to the said Resolution at a stage after the Sale Deed is executed is a fait accompli and cannot be construed to enable the Registrar to quash such Resolution to result in a Registered Sale Deed in favour of a third party to be treated as non est, null or void.
11. Though it is not necessary for us to examine the question of equity or necessity of sale of such common plot by the Society in favour of the Appellant Trust, strictly speaking, as we are only concerned with the power and jurisdiction of the Authorities under the Act of 1961 to decide the said question, but we have seen from Page 22 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) the facts obtaining in the present case that not only the General Body Meeting of the Society passed a unanimous Resolution fully being aware of the fact that it is one of the two common plots of the Society but they are also selling the same in favour of the Appellant Trust for the purpose of construction of a 'Satsang Bhawan' which will be also available for utilization by the common people including the members of the Respondent Society. The object of utilizing the common plot for a common use of the Society therefore cannot be obviously said to be defeated by such a sale. The Resolution passed by a unanimous consent of all the members could not have been upset at the instance of a dissatisfied member of the Society only under the guise of a common plot being sold to a third party like the Appellant Trust. The availability of another common plot of almost the same size namely 400 sq. yards with the Society could very well be utilized for their other common facilities and purposes and there was hardly any reason to be upset too much about the sale in favour of the Appellant Trust and construction of a 'Satsang Bhawan' which is undoubtedly a common usage for all.
12. Therefore, we are of the opinion that the Board of Nominees Page 23 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022 C/LPA/999/2010 JUDGMENT Dt. 04.03.2021 HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL Versus VINODCHANDRA G VAGHELA & 1 other(s) has erred in entertaining the Lavad Suit No. 2256 of 1994 filed by Mr. Vinodchandra G. Vaghela and which was not within the jurisdiction of the said Board of Nominees under Section 96 of the Act as the Registered Sale Deed stood duly executed and that fact was disclosed in the said Lavad Suit itself. The Cooperative Tribunal has also therefore fallen into error in dismissing the Appeal filed by the Appellant Trust. We are unable to sustain the Order of the learned Single Judge dated 11.01.2010 in appeal before us.
9. Consequently, we allow the present Appeal and set aside the Judgement and Order of the learned Single Judge dated 11.01.2010 and also the Order dated 23.04.1999 passed by the Board of Nominees and the Order dated 17.06.2003 passed by the Co operative Tribunal. No order as to costs.
sd/ (DR. VINEET KOTHARI,J) sd/ (BIREN VAISHNAV,J) DIVYA Page 24 of 24 Downloaded on : Thu Jan 13 06:11:59 IST 2022