Smt. Padmavati Tirathsingh Dupar & Anr. v. Jasbir Singh Dhupar & Ors.

Shri T.D. Deshmukh for the Applicants. Shri Siddharth R. Ronghe for Respondent No.1. .... .... CORAM: N.V. DABHOLKAR, J. 25th July, 2008. P.C. :

Heard the respective counsel. The original Defendants 1 and 2 are before this Court being aggrieved by the rejection of their application, Exhibit 38 in Special Civil Suit No.873 of 2005 by the 4th Joint Civil Judge, Senior Division, Pune.

Present Respondent No.1 filed the suit against the present Applicants and Respondent Nos.2 to 4, seeking a declaration that the Plaintiff has 1/4th undivided share in the subject property i.e. Flat No.14 in Abhanga Co-operative Housing Society Limited, 44, Sassoon Road, Pune 411 001. Further relief is prayed that Defendant No.4 i.e. co-operative society should not 2 make any changes in the record of the society, so far as subject property is concerned. A declaration is also sought that the gift deed dated 17th February, 2004 by Defendant No.1 ( Smt. Padmavati) in favour of Defendant No.2 (Mr. Joginder Singh) is illegal, invalid and void ab initio. It can be seen that it is a dispute between the mother and one son as Defendants and another son as Plaintiff. The Plaintiff son is aggrieved by the gift deed executed in favour of another son by his mother. Since co-operative housing society is impleaded as Defendant No.4 an exception was raised by Defendants 1 and 2 ( and not by the society itself) challenging the maintainability of the suit in view of the bar created by Section 164 of the Maharashtra Co-operative Societies Act,

Heard the respective counsel. Section 164, the relevant provision reads as under :

Notice necessary in suits,- No suit shall be instituted against a society, or any of officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description....

I have underlined clause “any act touching the business 3 of the society” for the purpose of emphasis and that is the basic requirement before expecting that the Plaintiff should deliver a notice to the Registrar of co-operative societies for the purpose of filing any civil suit or claim against the society. He is also required to wait for a period of two months after delivery / service of such notice. However, notice is the requirement, only when subject matter of the suit is pertaining to “any act touching the business of the society”.

Advocate Shri Deshmukh vehemently urged that a relief is claimed against the society that it should not modify its record. In any case, this cannot be termed as the main relief. Firstly, the business of the society is to provide residential premises to its members. Maintaining the record regarding allotment of flats to its members is an ancillary function and cannot be said to be “the business of the society”. Otherwise also from the tenor of the pleadings it can be seen to be a dispute between two brothers over the right to the flat, which appears to have been acquired by the mother through the housing society, Defendant No.4 and which she seems to be inclined to gift to one out of the two sons. The claim raised by the Plaintiff if understood in its proper perspective 4 is a property dispute between the two brothers and the relief sought is not pertaining to or against any act touching the business of the society.

I am therefore unable to find any illegality or material irregularity in the order of the Trial Court dated 8th February, 2007 by which he turned down the request of Defendants 1 and 2 praying for rejection of the plaint on the ground that the suit is barred by any legal provision.

Revision Application is therefore dismissed. Parties shall be at liberty to apply before the Trial Court for early disposal of the suit, if they so desire.

(N.V. DABHOLKAR, J.)