1 AO NO.27/2010. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.27/2010. with CA NO.2670/2010. Liquidator, Basmath Ginning Pressing Co/op society, Basmath - APPELLANT (orig.Defendant) VERSUS 1) Tehara Begum w/o Mahemood Sharif and two ors. - RESPONDENTS (orig.Defendants) ***** Mr.RJ Nirmal, Adv. for appellant; Mr.DM Shinde, Adv. for Resp.Nos. 1 & 2; Mr.SS Rathi, Adv. for Resp.No.3. ----- CORAM : K.U.CHANDIWAL,J. DATE : 30th November,2010. PER COURT: 1) Heard both the counsel extensively. 2) The remand is questioned. 3) Admit. Substantial question of law between the parties is as under, - “Whether the learned first Appellate court, while remanding the matter dated 7.11.2009, has overlooked the provisions of Section 107 and 163 of the Maharashtra Cooperative Societies Act, 1960?” 2 AO NO.27/2010. 4) In a suit for declaration that the plaintiffs are joint owner and possessors of agricultural land, the learned Civil Judge, Junior Division, Basmath in RCS No.96/2008 by order dated 5th September, 2008, rejected the plaint for want of notice under Section 107 of Maharashtra Cooperative Societies Act, 1960 (hereinafter to be referred as the said Act). The learned Judge found that it had no jurisdiction. The matter was taken before the learned District Judge-1, Beed in RCA No.25/2008. The learned District Judge, on evaluation of legal position, directed the remand for deciding the suit on merits, which is questioned. 5) The learned Counsel for the plaintiffs (Respondent Nos. 1 and 2 herein) submits, even if there is a mistake on the part of the respondent nos.1 and 2, in not making an application under Section 107 of the said Act before the Registrar, as ordained in the said section, however, that by itself would not dis-entitle the respondents nos. 1 and 2 to prosecute the suit as the relief is not claimed against the liquidator alone, it is also claimed against the private parties, the subsequent purchaser based on the auction conducted by the liquidator. 6) The learned Counsel took recourse to the judgment of the Division Bench of this Court in the matter of State Bank of India Vs. Amravati 3 AO NO.27/2010. Zilla Krishi Audyogik Sahakari Sangh Maryadit and Ors., reported in 2004 (4)Bom.C.R. 434, wherein in paragraph 13 it is observed as under : “13. The contention of the appellant that the trial Court ought to have given them permission to seek leave from the Registrar as contemplated under Section 107 of the Societies Act finds favour with this Court as there was no reason for the trial Court to have outrightly rejected the plaint merely on raising a preliminary issue. The appellant/plaintiff in reply to the application made by original defendant no.1 have categorically stated that it was only when the preliminary issue came to be raised that they came to know that the order of liquidation has been passed in respect of original defendant no. 1 and, therefore, they sought the permission of the Court to seek leave of the Registrar under Section 107 of the Societies Act. The trial Court without granting them an opportunity to approach the Registrar, who was also a defendant before the Court, should not have rejected the application and, therefore, we find that the impugned order cannot be sustained in law and deserves to be quashed and set aside.” 7) The situation in the present case also emerged on identical aspects. Even if the learned Judge found that there was one of the requirements of issuance of notice under Section 107 of the said Act or permission from the 4 AO NO.27/2010. learned Registrar, it ought to have allowed the plaintiffs to make an application, if they so desired and then to have proceeded ahead. This is more so as the suit was also against the subsequent purchaser, the respondent no.3 in the present proceedings. 8) In this scenario of the matter, the remand directed by the learned Judge, though on different count, need not be questioned. Though the learned Judge of the first Appellate court did not evaluate the position of Section 107 of the said Act in its correct perspective, however, the remand of the matter need not be questioned. The plaintiffs (Respondents herein) after the remand, are at liberty to move the learned Civil Judge, Junior Division, in terms of Section 107 of the said Act, after hearing both the sides, on its own merits, the learned CJJD will decide the same. 9) The substantial question of law, framed above, is answered against the appellants to the above extent. Appeal from Order is dismissed. No costs. CA 2670/2010 disposed of. (K.U.CHANDIWAL) JUDGE bdv/