WP1137/95 (1) agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1137 OF 1995 Prataprai Trimbaklal Mehta .. Petitioner versus Jawahar Nagar Co­operative Housing Society Ltd & Anr .. Respondents Mr.P.B.Shah for the petitioner. Mr.S.A.Sawant i/by Ms.Suman Jain for respondent No.1. CORAM : A.S.OKA, J. DATE : 29th September 2010. JUDGMENT: . Heard learned counsel appearing for the petitioner and learned counsel appearing for the 1st respondent. The challenge in this Writ Petition is to the orders dated 13th November 1992 and 12th August 1994 passed by the learned Judge of the Co­operative Court and learned Member of the Co­operative Appellate Court respectively. 2. A dispute under section 91 of the Maharashtra Co­operative Societies Act, 1960 (hereinafter referred to as the said Act) was filed by the 1st respondent Society against the 2nd respondent. The dispute was not contested by the 2nd respondent. On 30th March 1992, ex­parte award was made declaring that WP1137/95 (2) the 1st respondent Society has validly terminated the right of the 2nd respondent as its member and shareholder and the leasehold rights in respect of plot No.191. The 2nd respondent was directed to hand over original share certificates and place the 1st respondent in possession of the said plot. 3. The 2nd respondent by virtue of membership of the 1st respondent was granted the aforesaid plot No.191. A suit was filed by the present petitioner against the 2nd respondent and his wife one Ranjana V. Shah on the Original Side of this Court. According to the case made out by the petitioner, the 2nd respondent executed an Agreement for Sale dated 15th April 1985 in respect of the said plot No.191 by which he agreed to sell the said plot to the petitioner. Reliance is placed on a Deed of Confirmation of the said agreement which was duly registered. In the suit filed by the petitioner in this Court for specific performance of the said agreement, a consent decree was passed by and between the petitioner, the 2nd respondent herein (1st defendant in the suit) and the 2nd defendant in the suit who was the wife of the 2nd respondent herein. The consent decree declared that the Agreement and Deed of Confirmation were valid, subsisting and binding. Under the consent decree, the 2nd respondent agreed to hand over to the petitioner possession of flat Nos.1 and 3 on the building constructed on plot No.191 on or before 31st December 1988. Other terms and conditions of settlement were incorporated in the consent terms. The 2nd WP1137/95 (3) respondent and his wife agreed to execute a Sale Deed in respect of the suit plot on or before 30th January 1989. 4. As stated earlier, ex­parte award was passed in a dispute filed by the 1st respondent against the 2nd respondent. The ex­parte award was passed on 30th March 1992. An application was made by the petitioner in the Co­operative Court in the disposed of dispute praying for setting aside the ex­parte award and for directing impleadment of the petitioner as opponent No.2 to the proceedings. By order dated 13th November 1992 the learned Judge of the Co­operative Court rejected the said application. The appeal preferred by the petitioner in the said order has been dismissed by the judgment and order dated 12th August 1994 passed by the learned member of the Co­operative Appellate Court. 5. The learned counsel appearing for the petitioner has taken the Court through the annexures to the petition and documents forming part of additional compilation. He submitted that when the ex­parte award was passed on 30th March 1992, the 2nd respondent had no subsisting title. He submitted that the award is collusive and obtained by fraud to defeat the rights of the petitioner under the consent decree. He pointed out the conduct of the 2nd respondent and contented that the said respondent tried to back out from the consent decree by adopting various methods. He submitted that the dispute filed by the 1st WP1137/95 (4) respondent was not maintainable in as much as the 2nd respondent could have been removed from membership only by following procedure prescribed by section 35 of the said Act. He placed reliance on a decision of this Court in the case of Mahalaxmi Railway Karmachari Sahakari Griha Nirman Sanstha Ltd Vs. Anil Wamanrao Gawande & Anr [2002 (3) Bombay Law Report 20] in support of the contention. He, therefore, submitted that by setting aside the impugned orders, the dispute filed by the 1st respondent be dismissed. 6. The learned counsel appearing for the 1st respondent on instructions of the 1st respondent states that without prejudice to its rights and contentions, the 1st respondent has no objection if prayers (a) and (b) of Misc. Application No. 39 of 1992 are granted and dispute is ordered to be heard afresh. 7. The application made by the petitioner before the Co­operative Court contains only two substantive prayers. The first prayer is for setting aside the ex­parte award and the second prayer is for a direction to implead the petitioner as a party to the dispute filed by the 1st Respondent. Therefore, even if impugned orders are set aside, at highest prayers (a) and (b) of the said application made by the petitioner himself can be granted. Before the Co­ operative Court and Co­operative Appellate Court, the petitioner did not pray for dismissal of the dispute filed by the 1st respondent. The 1st respondent has no WP1137/95 (5) objection for granting prayer clauses (a) and (b) of the application made by the petitioner which is the maximum relief which can be granted in favour of the petitioner. The petitioner is allegedly claiming through a member of the 1st respondent Society and therefore the petitioner can be impleaded as a party opponent to the said dispute after setting aside the ex­parte award. The issue whether the dispute filed by the 1st respondent was maintainable will have to be decided by the Co­operative Court. 8. Hence, I pass the following order: : O R D E R : (a) The impugned judgments and orders are quashed and set aside. (b) The Misc. Application No.39 of 1992 in Case No.CCIV/33 of 1992 is allowed in terms of prayer clauses (a) and (b). (c) The dispute filed by the 1st respondent is restored to the Co­operative Court. (d) The parties are directed to appear before the Co­ operative Court on 29th November, 2010 at 11.00 a.m. WP1137/95 (6) The Co­operative Court will permit the 1st respondent to carry out amendment to the dispute for impleading the petitioner as a party opponent No.2 and for adding consequential averments and prayers. (e) It will be open for the petitioner to file written statement within a period of eight weeks from the date on which amended dispute is served to him. (f) The Co­operative Court will proceed to decide the dispute afresh in accordance with law as expeditiously as possible and preferably before end of April 2011. (g) All contentions of the parties including the contention of the petitioner about maintainability of the dispute are expressly kept open. (h) Rule is partly made absolute in above terms with no orders as to costs. (A.S.OKA, J)