Deshbhushan Co-operative Housing v. M/s.Sachinam Estate Developers Private Limited

Greater Mumbai, rejecting the Defendant's Notice of Motion No.3872 of 2007 whereby the Defendant had sought that the Court should hold that the suit was not maintainable for 2 CRA 441-08 want of notice under Section 164 of the Maharashtra Cooperative Societies Act, 1960.

I have heard the learned Counsel for the parties.

This Revision is filed by one S.B.Nayak, claiming to be Secretary of Applicant No.2 (cid:19) Society, who was arrayed as Defendant in the suit. The frame of the suit shows that the Plaintiffs (cid:19) Developers of the property had alleged that Defendant No.1 (cid:19) S.B.Nayak had no authority to deal with the affairs of the Society and therefore, could not have issued notice dated 20th March, 2007 on behalf of the Society. The reliefs claimed in the suit show that the Plaintiff had sought a declaration that notice issued by Defendant No.1 (cid:19) S.B.Nayak was illegal, bad-in-law and without any authority. An injunction was sought to restrain the Defendant No.1 from obstructing or interfering with the work of 3 CRA 441-08 development.

According to the learned Counsel for the Applicants, the learned Judge erred in holding that for want of the memorandum and bye laws of the Society, he was not in a position to find out as to what was business of the Society & whether the suit pertained to a matter touching the business of the Society. He may be right in submitting that the learned Judge need not have concluded that because by- laws were not produced, Society could not be said to be involved in construction of houses or that such activity would not fall in the business of the Society. Judgment of this Court in Suprabhat Co-operative Housing Society Ltd. & another Versus Span Builders & another, reported in 2002(6)Bom.C.R.257 holds that construction of house would be the main job of such a housing Society & would be an act touching the business of the Society. 4 CRA 441-08

The question here is not what was the business of the Society, but whether the dispute raised in the suit pertained to an touching business of Society. The dispute raised in the suit was not about the construction of houses, but about the authority of Defendant No.1 to represent Defendant No.2 (cid:19) Society. In fact, on behalf of the Society, Civil Application No.185 of 2008 has been filed stating that the Society had no such objection to raise and therefore, the proposition is that if the revision has to continue it has to be continued at the instance of only Defendant No.1 (cid:19) S.B.Nayak.

The learned Counsel for the Applicants submits that whosoever represented the Society, since a notice as required under Section 164 of the Maharashtra Cooperative Societies Act, 1960 has not been given the suit would not be tenable. He submitted that giving notice subsequently would also not 5 CRA 441-08 cure the defect, nor would it permissible to the Society to condone this. Now this is doubtful proposition. If notice is required to be given to enable the Society to take remedial action and to avoid litigation & if the Society itself does not object to the suit being filed without prior notice such an objection could not be raised, by any one else.

In any case, that is not a dispute which is raised in the suit. The dispute is whether Shri S.B.Nayak could represent the Society. The question of membership of S.B.Nayak and several others had been raised in a separate proceedings before the authorities under the Maharashtra Cooperative Societies Act, 1960, right up to the Hon'ble Minister. It has been held that S.B.Nayak and others ceased to be members of the Society in view of the resolution dated 30th December, 2004 on having transferred their shares to 6 CRA 441-08 three new incoming members. This order of the Hon'ble Minister had been questioned by a Writ Petition before this Court which was decided just before taking up this Civil Revision Application for hearing, holding that the District Deputy Registrar as well as Joint Registrar and the Hon'ble Minister rightly held that names of seven members including S.B.Nayak had to be removed. Therefore, S.B.Nayak would have no authority to represent the Society and therefore, declaration sought by the Plaintiff, that Nayak had no authority to represent the Society, would not be an act in respect of which notice would be required to be issued under Section 164 of the Maharashtra Cooperative Societies Act, 1960 before filing a suit. Therefore, the learned Judge had rightly rejected Notice of Motion. Reasons given by him in paragraph 24 to 26 of the Judgment of his order show that the controversy which the learned Judge had considered was about the status of S.B.Nayak 7 CRA 441-08 claimed to be Secretary of the Society and he had rightly concluded that suit was main tenable.

Civil Revision Application is, therefore, dismissed.

In view of dismissal of Civil Revision Application, Civil Application Nos.150 of 2008 and 185 of 2008 do not survive and the same