bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7061 OF 2008 PETITION NO. 7061 OF 2008 PETITION NO. 7061 OF 2008 Harshad H. Jambusaria ... Petitioner v/s M/s.M.D.Readymoney Apartment Co-op. Housing Society Ltd. ... Respondent Mr.Vivek Walawalkar with Mr.H.J.Engineer i/by M/s.Gordhandas & Fozdar for the petitioner. Mr.Ajay Khandhar i/by M/s.Ajay Khandhar for the respondent. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 16TH OCTOBER, 2008 16TH OCTOBER, 2008 16TH OCTOBER, 2008 P.C. P.C. P.C.: 1. The petition challenges the order passed by the Co-operative Court below Miscellaneous Application No.141 of 2002 by which it is held that the dispute filed by the respondent is not barred by limitation and that the Court has jurisdiction to entertain the dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960. The revision application filed by the petitioner against this order has been dismissed and, therefore, that order has also been challenged in the present petition. 2 2. An ex-parte award was passed against the respondent Society in a dispute filed by the petitioner in Case No.CC/II/254 of 1984 on 6.1.1986, restraining the respondent by a permanent injunction from interfering with the petitioner’s use and occupation of a godown and an open space admeasuring 250 sq.ft. in front of the godown as well as two car parking spaces. The petitioner was the Chairman of the respondent Society at that point of time when the award was passed against the Society. 3. The petitioner has raised two preliminary issues: (i) regarding the maintainability of the dispute as it was barred by limitation and (ii) that the Co-operative Court had no jurisdiction to entertain the dispute. The Co-operative Court as well as the appellate Court, in revision, have held that the dispute is not barred by limitation and that the Co-operative Court had jurisdiction to entertain dispute filed by the respondent. 4. Mr.Walawalkar appearing for the petitioner submits that a dispute which is decided ex-parte against a person, cannot be re-opened unless an application is made within 30 days from the date of the ex-parte order 3 passed and only when the Court is satisfied that there was sufficient cause made out by the party for his failure to appear when the dispute was decided. The learned counsel submits that both the Courts below have not correctly appreciated the law while passing the impugned orders. He submits that an application for setting aside the ex-parte order perhaps could be filed even 30 days after the order has been passed. However, according to the learned counsel, the Co-operative Court cannot set aside the decision unless there is sufficient cause shown for the failure to appear when the dispute was called out. He submits that both the Courts below have not considered the fact that the respondent had not explained its inability to appear after the writ of summons was issued against it and, therefore, the Co-operative Court could not have set aside the ex-parte award as it was barred by limitation. 5. A perusal of the impugned orders indicates that the respondent Society was informed of the ex-parte order only on 2.12.2000 after which it immediately filed the present dispute. The contention of the petitioner that he had informed the Society immediately after the award was passed on 6.5.1986, has not been accepted by the Courts below. The Courts below have also held, after giving cogent reasons that, the dispute filed by the 4 Society is maintainable. The Courts below have noted the fact that the petitioner was the Chairman of the Society when the ex-parte award was made and no other member of the Co-operative Society knew that the dispute had been filed by the petitioner against the Society in the year 1984. 6. Concurrent findings of fact have been arrived at by the Co-operative Court and the Appellate Court on the basis of well reasoned orders. It is not necessary to interfere with these orders under the writ jurisdiction of this Court. 7. Writ petition rejected.