1 cra 192-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 192 OF 2010 The Saraswat Co-operative Bank Ltd. ..Applicant vs. Vinayak Co-operative Housing Society Ltd. ..Respondent Mr.P.K. Dhakephalkar i/b. Mr.Durgaprasad S. Sabnis for the Applicant. Mr.P.S. Dani with Ms.Priya Aggarwal, Ms.Mrunalini Panchal i/b. M/s.Halai & Co. for the Respondent. CORAM : B.R. GAVAI, J DATED : FEBRUARY 1, 2011. P.C. : 1 The applicant by way of present application is challenging the concurrent orders dated 16th March, 2007 passed by the learned Small Causes Court at Mumbai (Bandra Branch) in T.E.& R Suit NO.107/132 of 2002 thereby decreeing the suit of the respondent and the order passed by the 2 cra 192-2010.sxw Division Bench of the said Court dated 19th December, 2009 thereby dismissing the appeal of the applicant. The facts in nutshell are as under :- 2 The suit premises were given to the applicant-defendant by the respondent-plaintiff society under the Agreement of Lease dated 8th October, 1976 and 9th May, 1977 on a monthly rent of Rs.2910/- commencing from 21st April, 1977. The first term of the lease expired and the plaintiff- society orally permitted the defendants to occupy the premises for a further period of 10 years from 1.9.97. No fresh agreements were executed between the parties. 3 It is the contention of the plaintiff- society that after the expiry of the extended period of lease in the year 1996, possession of the defendant of the suit premises was 3 cra 192-2010.sxw unauthorised and unlawful. Notice dated 8th January, 2002 was, therefore, issued by the plaintiff-society calling upon the applicants- defendants to handover the possession of the suit premises and also thereby terminating the tenancy. By reply dated 20th February, 2002, the Bank refused to handover the possession alleging that it is premature termination of the lease. Thereafter, the plaintiff-society sent a rejoinder dated 2nd April, 2002. The copy of the said notice dated 8th January, 2002 was also forwarded to the Registrar of Co-operative Societies along with letter addressed to the Registrar of Co-operative Societies stating therein that the said notice may be treated as notice under Section 164 of the Maharashtra Co-operative Societies Act. 4 Since in spite of the receipt of the notice terminating the tenancy and directing to handover the possession and the possession was not handed over, the suit came to be filed by the 4 cra 192-2010.sxw plaintiff for a decree for eviction and possession and for mesne profits. The suit was resisted by the applicant-bank by filing written statement. Subsequently, an amendment was carried out in the written statement thereby contending that the dispute in the present suit was between the two co-operative societies and as such, a suit for resolving such dispute can be entertained only by a Co-operative Court and not by any other Court in view of the Section 91(3) of the Maharashtra Co- operative Societies Act. It was contended that there was offer by the plaintiff-society for sell of premises which was accepted by the defendant and as such, in view of the provisions of Section 53-A of the Transfer of Property Act, the possession of the defendant was to be protected. By amendment to the written statement, it was further contended that unless statutory notice under Section 101 of the Co-operative Societies Act was given, the suit was not tenable. The learned trial court after considering the evidence 5 cra 192-2010.sxw on record decreed the suit. Being aggrieved thereby, the appeal was preferred. The appeal is also dismissed. Hence, the present appeal. 5 Shri Dhakephalkar, learned Counsel appearing on behalf of the applicant submits that from the record it was clear that there was exchange of offers and counter-offers between the applicant and the respondent regarding sale of the suit premises. He submits that not only that but in the Annual General Meeting held on 18th July, 1999, the decision was taken to sell the said premises to the plaintiff-bank. He further submitted that since the applicants were put in possession of the premises, they were entitled to protection under Section 53-A of the Transfer of Property Act. It is, therefore, submitted that the both the Courts below have erred in decreeing the suit and dismissing the appeal. 6 Shri Dani, learned Counsel for the 6 cra 192-2010.sxw respondent-society, on the contrary, submits that both the Courts below by well reasoned order have found no substance in the case of the applicant and therefore, decreed the suit and dismissed the appeal. He, therefore, submits that the present application is liable to be dismissed. 7 Shri Dhakephalkar, learned Counsel, however, submitted that since both the plaintiff and the defendant are two co-operative societies and in view of Section 91 of the Maharashtra Co- operative Societies Act, the suit has to be filed only before the Co-operative Court and no other court. 8 The scope of interference in the revision jurisdiction is very limited. It is not permissible for this Court to re-appreciate the evidence unless it is found that the findings of both the Courts below are perverse. 7 cra 192-2010.sxw 9 Insofar as the issue regarding the jurisdiction is concerned, it has been concurrently held that the suit was for eviction of the defendant on the basis of Lease Agreement executed between the parties and as such, the suit was not the one which was touching to the business of the society. In that view of the matter, no error could be found with respect to that finding. 10 Insofar as the contention of the learned Counsel for the applicant regarding the defendant being in possession of the suit premises and application of Section 53-A of the Transfer of Property Act is concerned, the learned trial court in para 14 and the learned appellate court in paras 14, 15, 16, 17 and 18 have elaborately considered the evidence in that respect. It has been categorically found that there was no written agreement between the parties which was signed by any of the parties, no consideration amount was received by the society. It has also been found 8 cra 192-2010.sxw that though in the earlier meeting of the General Body held of 18th December, 1999, it was resolved to offer the suit premises for sale to the defendant, in the subsequent meeting of the General Body dated 3rd February, 2002, it was unanimously decided to withdraw their offer. The defendant was also accordingly informed about the decision of the society, that they were no more interested in selling the premises to the defendant-bank. 11 Perusal of Section 53-A of the Transfer of Property Act would reveal that for claiming benefit thereof, it would be necessary for a party to establish that there is a contract to transfer for consideration of immovable property, by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and that the transferee has, in part performance of the contract, taken possession of the property or any 9 cra 192-2010.sxw part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract. It can clearly be seen that the applicants have failed to produce any written contract on record from which terms necessary to constitute the transfer can be ascertained with reasonable certainty. It is further to be noted that the possession of the plaintiff was not in pursuance to part performance to any contract but as a lessee. It is further to be noted that though the applicants have filed a suit in this Court being Suit No.1202 of 2005 for specific performance of the contract and though had filed an application for stay of appeal before the learned appellate court, the said application was rejected by this Court. 12 In that view of the matter, no perversity 10 cra 192-2010.sxw could be noticed in the concurrent findings of facts recorded by the both the Courts below to warrant any interference. 13 Civil Revision Application is, therefore, dismissed. 14 At this stage, the learned Counsel for the applicant prays for extension of interim protection for a period of six weeks from today. 15 Shri Dani, learned Counsel for the respondent-landlord, on instructions, states that the respondent-plaintiff shall not put the decree in execution for a period of six weeks from today. 16 In that view of the matter, no orders are necessary. (B.R. GAVAI, J)