Bombay High Court
Mr.Janardan Daji Naik vs Mahim Causeway Machhimar ... on 5 January, 2012
Author: G.S.Godbole
Bench: G.S.Godbole
kvm 1 wp6343_1997
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6343 OF 1997
Mr.Janardan Daji Naik ..... Petitioner
Vs.
1. Mahim Causeway Machhimar Co.op.Housing Society Ltd.
2. Shri Pradeep Laxman Ghivalikar
3. The Divisional Joint Registrar of Co-operative Societies,
Mumbai Division (Appeals), Mumbai ..... Respondents
Mr.Uday Warunjikar, Advocate for the Petitioner.
Mr.L.H.Patil, Advocate for Respondent No.2.
Mr.R.M.Patne, AGP for Respondent No.3.
None for Respondent No.1 though served.
CORAM : G.S.GODBOLE, J.
DATE : 5th JANUARY, 2012 ORAL JUDGEMENT Heard Mr.Warunjikar for the Petitioners, Mr.L.H. Patil for Respondent No.2 and Learned AGP for Respondent No.3. No one has appeared on behalf of Respondent No. 1 though duly served.
2. The controversy involved in this petition is very narrow. Respondent No.1 is the Society registered under Maharashtra Co-operative Societies Act, 1960. It is also admitted position that prior to its registration, the Petitioner was one of the promoter members. List of members was approved by the Director of Fisheries. It is revealed ::: Downloaded on - 09/06/2013 18:03:09 ::: kvm 2 wp6343_1997 from the record that on 9th April, 1986 an agreement was entered into between the Petitioner and Respondent No.2 whereby Petitioner agreed to transfer all his shares and interests in the Society in favour of Respondent No.2. An affidavit to that effect was sworn by the Petitioner. On 10th April, 1986, an application was also submitted by the Petitioner to the Respondent No.1 Society indicating that instead of and in place of the Petitioner, Respondent No.2 should be admitted as a member of Respondent No.1 Society. There is no dispute about signing of this application and about the fact that Respondent No.2 had also submitted an application for being admitted as a member of the Society. The Society was registered on 11th June, 1987. It also appears that a sum of Rs.10,000/- was paid by the Respondent No.2 through cheque issued by his father to the Society for the contribution of price for acquiring the land and that amount was utilised by the Society.
3. Since the Society did not formerly admit the Respondent No.2 as a member, Respondent No.2 filed an Appeal No. 7 of 1991 under Section 23 of Maharashtra Co- operative Societies Act, 1960 before the Assistant Registrar of Co-operative Societies in which the Respondent No.1 Society was impleaded as a Respondent. The Respondent No.1 Society filed a detailed reply and accepted that on 9th April 1986 and 10th April 1986, the Petitioner had submitted his affidavit and application to the Chief Promoter of the Society. Only defence which was taken was that subsequently on 16 th August 1987, a resolution was passed by the Managing Committee and General Body of the Society that the promoter member should not be replaced and that is the only reason for not admitting Respondent No.2 as a member.
4. By Judgement and order dated 15th October, 1992, the Learned Assistant Registrar of Co-operative Society (Co-operative Cell) Mumbai Housing and Regional Board, Mumbai allowed the appeal filed by Respondent No.2. Aggrieved by this order, Respondent No.1 filed a revision application under Section 154 of the Maharashtra Co- operative Societies Act, 1960 before the Divisional Joint Registrar of Co-operative ::: Downloaded on - 09/06/2013 18:03:09 ::: kvm 3 wp6343_1997 Societies being the Revision Application No.252 of 1992. The Petitioner filed an application for intervention in the Revision Application and was accordingly allowed to be added as a Respondent in the Revision Application. The Petitioner also filed his own affidavit in Revision Application supporting the Revision Application. It was contended by the Petitioner that the Respondent No.2 allegedly played fraud on him and that Respondent No.2 had allegedly obtained his signature on the affidavit dated 9th April 1986 and application dated 10th April 1986 by playing a fraud. The Petitioner also contended that he had never desired to transfer his membership. It was contended that he had received certain amount from the Respondent No.2 which was sought to be refunded by the Petitioner but Respondent No.2 did not accept the said refund.
5. At the time of hearing of the Revision Application, Advocate Mr. T.K.Patil appeared on behalf of the Applicant therein (Respondent No.1 Society herein). Advocate Mangela appeared for Respondent No. 2 herein. Advocate Sawant, who had been engaged by the Petitioner was, however, absent and, hence, his junior Advocate More requested for an adjournment. The Divisional Joint Registrar however, declined the request as the matter was old and proceeded to hear Advocate Mr.Patil and Advocate Mangela and also considered the affidavit filed by the Petitioner. Ultimately, by impugned judgement and order dated 8th January 1997, the Revisional Authority, the learned D.J.R.C.S. (Appeals) Mumbai dismissed Revision Application No.252 of 1992.
6. At the outset, Mr.Warunjikar submitted that Petitioner was not made party in Appeal No. 7 of 1991 before the Assistant Registrar and the Advocate of the Petitioner was not heard before the Revisional Authority and, hence, the proceeding should be remanded ideally to the Assistant Registrar or in any case, the impugned order of the Revisional Authority should be set aside and the revision should be directed to be heard again.
7. I am not inclined to accept the contention of Advocate Mr.Warunjikar for ::: Downloaded on - 09/06/2013 18:03:09 ::: kvm 4 wp6343_1997 various reasons. This Writ Petition is pending in this Court from 1997 and after atleast 14 and 1/2 years, the same has reached for final hearing. Secondly, before Revisional Authority, the Petitioner was not the applicant in the revision application but he had been added as Respondent No.2 on the application of the Petitioner. Respondent No.1 Society, who had filed the revision application, had appointed Advocate who had argued the points which were sought to be agitated by the Petitioner in the sense that the Respondent No.1 Society and Petitioner were supporting each other. Revisional Authority has also elaborately considered the entire stand of the Petitioner as taken in the affidavit in reply filed in revision supporting revision application. For all the aforesaid reasons, I am of the opinion that the Petitioner has not been able to show the substantial prejudice on account of non-hearing of the Petitioner by the Revisional Authority. Hence, the first request for remand cannot be accepted.
8. Mr.Warunjikar next contended that in fact there was no agreement between the Petitioner and Respondent No.2 and in absence of any agreement, Respondent No.2 could not have claimed membership. It was ultimately contended that even if it is assumed for the sake of argument that there was an agreement, the remedy of Respondent No.2 is to file a suit for specific performance in the civil court and obtain a decree. It was next contended that in any case there is nothing to show that the Petitioner has received any consideration from Respondent No.2. In this regard it is not possible to accept the contention of the Petitioner. The Petitioner has not disputed the execution of the affidavit dated 9th April 1986 and the application dated 10th April, 1986. Both the documents are on record and I have perused the same. On careful perusal, it is evident that the Petitioner has agreed to transfer his right, title and interest in the Society in favour of Respondent No.2. Not only this, on behalf of Respondent No.2 his father had issued a cheque of Rs.10,000/- in the name of the Society and though a receipt was issued in the name of the Petitioner, the Society has admitted even before Assistant Registrar that the entire amount has been paid on behalf of the Respondent No.2. Further conduct of the Petitioner belies his contention that he has ::: Downloaded on - 09/06/2013 18:03:09 ::: kvm 5 wp6343_1997 not received any amount from Respondent No.2. In fact on 7th November, 1992, the Petitioner had sought to refund a sum of Rs.16,000/- to the Respondent No.2 on the ground that he had received the said sum of Rs.16,000/- from the Respondent No.2 in relation to the transaction between them in respect of Respondent No.1 Society. It is an admitted position that Respondent No.2 did not accept the said refund. This clearly shows that on own showing of the Petitioner, he has received a sum of Rs.16,000/- from the Respondent No.2. Mr.Warunjikar then submitted that unless and until all the procedure for membership is followed, the Appeal filed by Respondent No.2 could not have been allowed. He submitted that the application for membership was not filed in the prescribed form and, hence, the application was liable to be rejected. I am unable to agree. It is admitted position that the application for transfer of membership was submitted. In fact, this application was submitted prior to the registration of the Society. In any case there is a substantial compliance as the transferor Petitioner and the transferee Respondent NO.2 had submitted an application for transfer of the shares of the Society in favour of the Respondent No.2. The procedure for transfer of membership was thus duly followed and it is difficult to hold that there was deficiency in the procedure.
9. The Assistant Registrar and the Revisional Authority have independently and elaborately considered all the factual aspects and have also considered the provisions of law. All the material facts and circumstances and pleadings of the parties have been taken into consideration and in my opinion, there is absolutely no perversity in the findings of the two authorities. The findings recorded by the authorities are not only in accordance with law but they are also in accordance with the bargain which was struck between the Petitioner and Respondent No.2, which the Respondent No.2 subsequently tried to resile from. The jurisdiction under Articles 226 and 227 of the Constitution of India is discretionary jurisdiction and considering the conduct of the Petitioner of having accepted the money from Respondent No.2 and the fact that even today the correctness of the contents of the affidavit and application dated 9th April 1986 and 10th ::: Downloaded on - 09/06/2013 18:03:09 ::: kvm 6 wp6343_1997 April 1986 is not being disputed, in my opinion this is not a fit case to interfere in the extraordinary jurisdiction of this Court. In my opinion no error whatsoever has been committed by the Authorities below. I, therefore cannot entertain to this petition and the same is hereby dismissed.
10. It is made clear that the observations made in this judgement have been made for the purpose of deciding the controversy relating to membership which is involved in this petition and if the parties have any other disputes not touching the membership, those can be agitated in accordance with the law before any other Forum.
11. With the aforesaid observations, Writ Petition is disposed of with no order as to costs.
12. At this stage, on the oral request of Advocate Mr.Warunjikar, the interim order which has been operating in favour of the Petitioner in terms of prayer clause (c) will continue to operate for a period of eight weeks.
(G.S.GODBOLE, J) ::: Downloaded on - 09/06/2013 18:03:09 :::