IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.554 OF 2009 Kiran Keshav Gulgule ...Petitioner V/s. M.C.Nagree & Ors. ...Respondents ...... Mr.S.D.Mulye for Petitioner. Mr.Kanchan Chimbulkar for Respondent No.1. Mr.D.L.Khanchandani for Respondents 2, 5 & 6. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. APRIL 29, 2009. APRIL 29, 2009. APRIL 29, 2009. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Ms.Chimbulkar waives notice for Respondent No.1. Mr.Khanchandani waives notice for Respondents 2, 5 & 6. 3. As short question is involved, Petition is : 2 : taken up for final disposal forthwith, by consent. 4. This Petition takes exception to the Judgment and Order passed by the Maharashtra State Cooperative Appellate Court, Mumbai dated 17th November 2008 in Appeal from Order No.124 of 2008. The Respondent No.1 filed dispute before the Cooperative Court at Mumbai being case No.CC/III/629/2008 praying for declaration that the Managing Committee Election is incomplete and not as per the result published by the Returning Officer and for further declaration that the co-option of the Petitioner herein in the Managing Committee is against the provisions of law and also that of Mr.Ashok Tanwani and is without adopting due process of law for which it deserves to be annulled and set-aside. The Petitioner/Respondent No.1 has asked for further declaration that the formation of the new Managing Committee and its office bearers is illegal, and without following due process of law. 5. During the pendency of the said dispute, Respondent No.1 filed application for interim : 3 : relief. The Co-operative Court on examining the rival case, partly allowed the said interim application Exhibit 5 and temporarily restrained opponent No.7 Ashok Tanwani from taking part in any policy decision of the Society. Insofar as the present Petitioner (Opponent No.6) is concerned, no order was passed. The Respondent No.1 carried the matter in appeal for further relief by way of Appeal from Order No.124 of 2008 filed before the Maharashtra State Co-operative Appellate Court, Mumbai. The Appellate Court on the other hand, restrained the Petitioner/Opponent No.6 from acting as Managing Committee Member of the Society till the disposal of the dispute. Insofar as the Petitioner is concerned, the Appellate Court found that there was material on record to show that the Petitioner/Opponent No.6 was a defaulter and was ineligible to be co-opted as member of the Managing Committee. The argument of the Petitioner is that the Petitioner can be treated to be a defaulter only if the procedure specified in Section 73 (FF)(1)(e) of the Act were to be complied. In that, it was imperative for the Society to issue three months legal notice to the Petitioner to be : 4 : served on the Petitioner by Certificate of Posting demanding the payment of dues. No such notice was ever sent to the Petitioner. The Appellate Court has, however, proceeded on the assumption that the Petitioner was a defaulter as the Petitioner has filed dispute regarding amount demanded by the Society. The fact that the Society had demanded some amount from the Petitioner and that the Petitioner in turn has challenged that demand by way of dispute, does not take the matter any further. In that, the law requires service of three months written demand notice calling upon the member to pay the outstanding dues. Unless that fact has been pleaded and established, the question of assuming that the Petitioner was a defaulter and therefore ineligible to be nominated as member of the Managing Committee does not arise. Counsel for the Respondent vehemently argued that the Court below has noted that there was material on record. According to the Respondent that finding does not merit any interference. It is not possible to accept this submission. As aforesaid, the fact that the Petitioner has filed some dispute challenging the demand, does not necessarily lead : 5 : to an inference that the dispute pertains to three months demand notice issued by the Society in relation to the outstanding dues which has been duly served on the Petitioner under Certificate of Posting as is required under Section 73 (FF)(C)(e) of the Act. It is only upon following that procedure and failure to make payment in terms of such demand notice, a person can be treated as defaulter so as to disqualify him for being chosen as a member of the Committee. The Appellate Court will have to record a clear finding of fact on the basis of material on record as to whether such legal notice has been served on the Petitioner. It is only thereafter the Appellate Court would be justified in holding that the Petitioner is ineligible to be nominated as member of the Committee. That finding is lacking in the Judgment delivered by the Appellate Court. 6. In the circumstances, the impugned Judgment and Order is set-aside. Instead, the Appeal from Order No.124 of 2008 is restored to the file of the Appellate Court to be examined on its own merits in accordance with law in the light of : 6 : observations made herein. The parties shall appear before the Appellate Court on 11th May 2009. The Appellate Court shall dispose of the restored : 7 : Appeal from Order as expeditiously as possible, preferably before 15th June 2009. 7. It is made clear that this order is not an expression of opinion either way on the merits of the claim of the Petitioner including the question as to whether the Petitioner is entitled to continue as member of the Committee in view of the subsequent development of election of new committee and nomination of some other person as member of the Committee. Those questions can be addressed by the Appellate Court, if so advised. 8. Petition disposed of on the above terms. A.M.KHANWILKAR, J.