StateMr v. D. Salunke

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD922 WRIT PETITION NO. 7204 OF 2018RANJANWAN COOPERATIVE HOUSING SOCIETY THROUGH ITSCHAIRMAN V N PATILVERSUSGEETA SARDARSING SHEVGAN AND ANOTHERMr. Rajendrraa Deshmukkh, Senior Advocate a/w Mr. U. S. Hashmi i/b Mr. Shriram Deshmukh, Advocate for the Petitioner Mr. S. G. Sangle, Addl. GP for the Respondent/StateMr. V. D. Salunke, Advocate for Respondent No.1CORAM: R. M. JOSHI, J.DATE: 9th SEPTEMBER, 2025P.C. :-1.By consent of both sides, heard finally at the stage ofadmission.2.This Petition takes exception to the judgment and orderdated 21/12/2016 passed by the Member, Maharashtra StateCooperative Appellate Court, Mumbai, Bench at Aurangabad in AppealNo. 89/2014, whereby the judgment and award passed by theCooperative Court, Aurangabad in Case No. CCA-118/2007 came to bemodified.3.The parties are referred to as ‘Disputant’ and ‘Society’ forthe sake of convenience.4.There is no denial of the fact that the dispute has been922 WP 7204.2018.odt1 of 7 raised before the Cooperative Court by the widow of the originalMember of the Society. There is however, dispute with regard to thecontinuation of the said membership. The facts appearing from therecord indicate that the Cooperative Society was formed for the purposeof providing plots to its Member for constructing houses. SardarsingShevgan was the Member of the Society and has paid the membershipfees so also contribution towards the purchase of the plot. Thereoccurred some issues in respect of the survey No. 49 on account of theencroachment being done in the said survey and as a result of whichthe plots therefrom could not be allotted to the Members. The Society,therefore, took a decision to sale the said plot, in the general body andresolution was passed to that effect. Pursuant to the said resolution theMembers were communicated to give an option as to whether theMember would like to have a alternate plot or refund of the amount.The said communication was done on 16/07/1990. It is case of theSociety that in response to the said communication no option wasprovided by the Member i.e. husband of Disputant. Whereas, theMember claims such option was given by letter dated 30/07/1990.There are also two communications on record, one addressed bySociety dated 15/06/1991 intimating forfeiture of the membership ofthe Member and response thereto by the Member by letter which wasresponded. Thereafter, the original Member died on 30/06/1998. TheRespondent who is the widow of the original Member tried to ventilate922 WP 7204.2018.odt2 of 7 her grievance of non allotment of plot before the authorities under theAct and ultimately the dispute came to be filed before the CooperativeCourt.5.The Society filed written statement before the CooperativeCourt specifically raising issue in respect of the limitation so also theright of the widow of the Member to get any relief. It is also contendedthat she is not the Member of the Society nor any allotment has beendone in her favour. With these pleadings, issues were framed by theCooperative Court.6.Admittedly, the Disputant entered the witness box and leadevidence on oath. Her testimony, however, has gone unchallenged. TheSociety failed to lead any evidence in rebuttal. The Cooperative Court byjudgment and award dated 30/09/2013, partly allowed the disputedirecting the Society to pay an amount of Rs.6,000/- along with theinterest at the rate of 12% per annum for the period from 26/09/2007till realization of the claim.7.The Society never took exception to the said award,however, the Disputant preferred Appeal No. 89/2014 challenging theorder passed by the Cooperative Court. The said challenge wasaccepted by the Appellate Court and by order dated 21/12/2016, thejudgment and award passed by the Cooperative Court came to bemodified in following terms;922 WP 7204.2018.odt3 of 7 “1) The appeal No. 89/2014 is hereby disposed off.2) The judgment and award dated 30/09/2013 passed by theJudge, Cooperative Court Aurangabad, in the dispute No.118/2007 is hereby set aside an replaced as under.a)The dispute no.118/2007 before Cooperative Court Aurangabad, is hereby allowed.b)The opponent society is directed to allot one plot to the disputant at par with other members.c)The society is entitled to recover additional cost as decided by the management.d)The dispute is dismissed against the opponent no.2e)The opponent no.1 to pay cost of the dispute to the disputant and bear its own.3)There is no cost of appeal.”8.The Society being aggrieved by this judgment and order,preferred this Petition.9.Learned Senior Advocate appearing on behalf of the Societysubmits that the Disputant has filed the dispute before the CooperativeCourt belatedly much after the prescribed period of limitation for filingthe dispute. It is his submission that the forfeiture of the membershiphas been done by letter dated 15/06/1991 and since then the disputeought to have been filed within a period of six years. It is his submissionthat though separate Application for condonation of delay was filed andthat the Cooperative Court in most causal manner has condoned thedelay. It is his submission that since the Society was not aggrieved bythe order passed by the Cooperative Court of directing the refund ofamount of Rs.6,000/- along with the interest at the rate of 12% perannum, there was no occasion for the Society to prefer any appeal922 WP 7204.2018.odt4 of 7 against the said judgment and award. It is his submission that beforethe Appellate Court, however, a prayer was made for remand of thedispute before the Cooperative Court to enable the Cooperative Societyto cross-examine the Disputant and also to lead evidence in support ofits contention. It is further submission that unless the resolution passedby the Society has been challenged and the same is set aside, therecould be no reason or justification for grant of any relief in favour of theDisputant. He placed reliance on the judgment of the Co-ordinate Benchof this Court in case of B. R. Ballal and others Vs. Atomica Co-operativeHousing Society Ltd.110.Learned Counsel appearing on behalf of the Disputantsupported the impugned order. He drew attention of the Court to thedocuments filed along with reply to contend that without any authorityconstruction of marriage hall etc. is done and therefore it cannot bepermitted to be claimed that plots are not available and that order ofCooperative Appellate Court cannot be implemented.11.There is no dispute about the fact that the period oflimitation has been prescribed for preferring the dispute before theCooperative Court, however, at the same time the delay caused in filingof the dispute could be condoned in appropriate cases. Herein this casethough no separate Application for the condonation of delay was filed,11988 C.T.J.292922 WP 7204.2018.odt5 of 7 there is averment in the dispute petition with regard to the condonationof delay. The Cooperative Court accepted the case of the Disputant andcondoned the delay.12.Though there is substance in the contention of the learnedSenior Advocate for the Society that since the final decree was not to bechallenged by the Society, there occurred no occasion for the Society tofile Appeal against the findings recorded against it. Even if it be so, itwas open for the Society to take exception to the said finding by evenmaking submission before the Cooperative Appellate Court. Perusal ofthe order of the Cooperative Appellate Court does not indicate so. Assuch, there is no challenge to the findings recorded by the CooperativeCourt in respect on the issue of limitation. This Court, therefore, findsno substance in the contention of the Petitioner with regard to thedispute becoming not entertainable. The said order of condonation ofdelay has attained finality.13.Since the dispute was filed by the Disputant, initial burdenwas on the Disputant to substantiate her case about her husband i.e.the original Member having communicated the option to Societypursuant to the letter dated 16/07/1990 issued by the Society. Theevidence of the Disputant in this regard on oath has gone unchallenged.This is not the case, wherein there is only oral statement of theDisputant to support the said submissions, however, the same is duly922 WP 7204.2018.odt6 of 7 corroborated by the documentary evidence on record. Since theDisputant was not cross-examined her version has gone unchallenged.The Disputant therefore, by leading cogent evidence that substantiateher case and the onus has shifted upon the Society to prove otherwise.14.Admittedly, the Society has not lead any evidence. Beforethe Appellate Court what was sought to be argued is that this is a case,wherein there has to a remand of the proceedings for afresh decisionbefore the Cooperative Court. Needless to say that the order of remandcannot be passed causally or just for asking and unless the case iscovered by the provisions of Order 41 Rule 23, 23A or 25, there was noquestion of the Appellate Court having remanded the said proceedingsfor decision afresh. The refusal of the part of the Appellate Court toremand the proceedings therefore cannot be faulted with.15.Suffice it to say that once the Disputant has established thecase of providing option of the alternate plot, the Cooperative Court wasnot justified in partly allowing the dispute and directing the refund ofthe amount. The error has been rightly corrected by the Appellate Courtwithin its jurisdiction. This Court, therefore, finds no perversity in theorder impugned in order to cause any interference therein.16.As a result of above discussion, Petition stands dismissed.(R. M. JOSHI, J.)ssp922 WP 7204.2018.odt7 of 7