SCA/9777/1993 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9777 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= URMILABEN SHIRISHBHAI MEHTA - Petitioner(s) Versus NAIMISH CO OP HOUSING SOCIETY - Respondent(s) ========================================================= Appearance : MR MB GANDHI for Petitioner(s) : 1, MR VIJAY H PATEL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 28/03/2008 ORAL JUDGMENT 1. The petitioner has preferred the petition for challenging the order passed by the Board of SCA/9777/1993 2/6 JUDGMENT Nominees, and its confirmation thereof by the tribunal whereby it is held that the learned Board of Nominees has no jurisdiction for examining the legality and validity of the resolution of the society for expulsion under Section 36 of the Gujarat Cooperative Societies Act (hereinafter referred as to the 'Act'). 2. Heard Mr. Gandhi learned Counsel for the petitioner, Mr. Vijay Patel learned Counsel for the respondent society. 3. After some arguments, learned Counsel appearing for both the sides under the instruction of their clients are on agreement on the following aspects: 1. If the petitioner pays the total amount of Rs. 75,000/- towards outstanding dues including penal interest, and the cost of the litigation to the respondent society within a period of three months, in monthly installments of Rs. 25,000/- of each, and the first installment shall become due on 30.04.2008, the society is not desire to expel the petitioner as the member by implementation of the resolution, which is SCA/9777/1993 3/6 JUDGMENT subject matter of the challenge in the suit proceedings. 2. It is also agreed that if the petitioner makes payment of Rs. 75,000/- within the aforesaid three months by installments, after full payment is received, the society shall issue No Due Certificate and shall also issue duplicate share certificate, if it is so desired by the petitioner, after payment of the cost for the formality to be undertaken. 3. The petitioner is also ready to file undertaking to this Court for payment of Rs. 75,000/-. 4. After payment of Rs. 75,000/- and after issuance of No Due Certificate, whole dispute shall stand settled, which was subject matter of the Lavad Suit No. 3424 of 1989. 4. Considering the above, as such it appears that in view of the decision of the Court in case of Gordhabhai N Vaghela v. Maruti Co-op. Housing Society and Ors. reported at 2003 ((1) GLH page 117 the expulsion is only by way of last resort SCA/9777/1993 4/6 JUDGMENT and society should consider the aspect of recovery of the amount by giving opportunity of hearing to the person concerned to pay up the amount etc. Further, as per the view taken by this Court in case of Arjunbhai K Vegda V. Tejvir Park Co-Op. Housing Society Ltd. and ors reported at 2002 (4) GLR 3026, until there is valid resolution of 3/4th majority, and the proposal submitted to the Registrar for approval, it cannot be said the Board of Nominees has inherent lack of jurisdiction. No further observations are required to be made, since learned Counsel appearing for both the sides have agreed to settle the dispute between the members of the society and the society. Further, it also appears that the member has shown willingness to pay outstanding dues and the cost of the litigation and the society has also positively responded to the same and the matter is amicably settled. Therefore, it would be just and proper to permit the petitioner and the respondent society to settle the dispute by putting an end to the litigation and for also SCA/9777/1993 5/6 JUDGMENT putting an end for action for expulsion of the members. 5. Hence, it is ordered as under: a) The petitioner shall pay the amount of Rs. 75,000/- to the respondent society toward all outstanding dues and the cost of litigation in three installments of Rs. 25,000/-, each payable every month and the first installment shall become due on 30.04.2008; the second on 31.05.2008; and the third on 30.06.2008. b) The petitioner shall also file an undertaking to the Court for payment of the amount as per the declaration made before this Court and such undertaking shall be filed within two weeks from today. c) After the payment of the aforesaid amount of Rs. 75,000/-, within one week, the society issue No Due Certificate to the petitioner. d) Upon compliance to condition of the payment of the aforesaid amount of Rs. 75,000/-, the action for expulsion of the petitioner, which was subject matter of the suit, would not survive and the dispute shall stand concluded SCA/9777/1993 6/6 JUDGMENT upon payment of Rs. 75,000/- 6. The petition is disposed of in terms of the aforesaid directions. Rule made absolute accordingly. No order as to costs. (JAYANT PATEL,J.) Suresh*