1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.542 OF 2000 IN NOTICE OF MOTION NO.3831 OF 1999 IN SHORT CAUSE SUIT NO.469 OF 1978 1. Shri Sankalp Co-operative Housing Society Limited, a Co-operative Society registered under the Maharashtra Co-operative Societies Act, 1960, under No.BOM/HSG/1727 of 1968 and having its office at 4, Arun Kamal Society, Mahatma Gandhi Road, Vile Parle (E), Bombay  400 057 2. Mrs.Rekha D. Mehta 3. Mr.K.C.Mehta 4. Mr.Jogindar Pal 5. Mr.Gurudayal Singh 6. Mrs.Nirmalaben D. Dagli ..Appellants 7. Mrs.M.F.Kothari 8. Mr.Sampat F. Kothari 9. Mr.Kishore B. Makwana 10. Mrs.Jayshree Mohanlal Dhanak 11. Mrs.B.M.Mehta 12. Mr.R.Shandilya 2 13. Mrs.R. Dudeja 14. Mr.Dinesh Dudeja 15. Mr.B. Meena All residing at Sankalp Co-operative Housing Society Limited, 23-B/2, Subhash road, Vile Parle (E), Bombay  400 057. V/s. Time Field Corporation a partnership firm, carrying on business at builders and contractors and registered under the Indian Partnership Act, 1932, and having their office at above Kurla ..Respondent Restaurant, Opposite Kurla Railway Station, Kurla (West) Bombay  400 070. Mr.J.P.Cama, Senior Advocate with Mr.K.P.Anilkumar, Ms.R.D'souza and Ms.Neha Mehta, for the Appellants Mr.H.S.S.Murthy a/w.Mr.Mangesh A. Narvekar, Advocate, for the Respondent CORAM : B.H.MARLAPALLE & C.L.PANGARKAR, JJ. DATE : 25TH FEBRUARY, 2010 JUDGMENT ( PER C.L.PANGARKAR, J.) . This Appeal is preferred against the Order of the Single Judge whereby he rejected 3 the Notice of Motion. 2. The Notice of Motion was moved by the Members of the Defendant  Society praying for setting aside an ex-parte consent Decree and for an injunction. The Appellants claim to be the Members of the Defendant  Sankalp Co- operative Housing Society Limited. It is their contention that Padma Jawle was purportedly acting as Secretary of Society in connivance with her husband. Yeshwant Jawle obtained a consent Decree fraudulently in Civil Suit No.469 of 1978. Many grounds have been raised to show how fraud was played with which we are not concerned for the present. The Notice of Motion does not seem to be dealt with by the learned Judge on merits. He found that the present Appellant did not have a locus to maintain a Motion, since neither of them could be said to be a Member. 3. The learned counsel for the Appellants 4 submits before us that the observation of the learned Judge that neither of the Appellants was a Member is not correct. He submits that there is a prima facie evidence available on record to hold that atleast some of the Appellants were Members of the Society. He also submits that in any case it was a matter of evidence to be produced before Court to substantitate the claim of the Appellants of their being Members. 4. The Notice of Motion is moved by the following 14 persons :- 1. Mrs.Rekha D. Mehta 2. Mr.K.C.Mehta 3. Mr.Jogindar Pal 4. Mr.Gurudayal Singh 5. Mrs.Nirmalaben D. Dagli 6. Mrs.M.F.Kothari 7. Mr.Sampat F. Kothari 8. Mr.Kishore B. Makwana 9. Mrs.Jayshree Mohanlal Dhanak 5 10. Mrs.B.M.Mehta 11. Mr.R.Shandilya 12. Mrs.R. Dudeja 13. Mr.Dinesh Dudeja 14. Mr.B. Meena It is clear that out of these 14, three were in fact the Administrators i.e.Mr.R.Shandilya, Mr.B.Meena and Mr.Jogindar Pal. Thus, it is clear that the Administrators were one of the Appellants. At page No.42, there is a list of outgoing and incoming Members also. If the list of the incoming Members is compared, it would also be clear that names of some of the Applicants appear as incoming Members. They are Mr.R.Shandilya, Mr.B.Meena and Mr.Jogindar Pal. 5. It was contended that Mr.Mahendra Mehta, who has sworn an Affidavit was not a Member at all. In the Affidavit in re-joinder at page 198, there is a clear statement on 6 oath that Mr.Mahendra Mehta was admitted as Associate Member. Therefore, the contention that the Notice of Motion, signed by Shri Mehta is not maintainable, does not appear prima facie to be correct. The question as to whether he is or is not an Associate Member will have to be decided on merits. When there is an Affidavit on record with such assertion the truth there of would be a matter which may require consideration on merits, after recording evidence. 6. The important thing that ought to be considered by the learned Judge was whether the interest of the present Appellants i.e. new members needed to be protected. Further, when it was alleged by the Appellants that a fraud has been perpetrated by Jawale and family and interest of the Members was not protected, it was all the more necessary for the Court, to have given an opportunity to the Appellants/Applicants to make out a case that 7 they were Members and their interest was not protected and that fraud was played. 7. In any case as already observed, the Administrators are also one of the Appellants. In no case, therefore, the Motion could have been rejected as filed without locus. That should be considered by giving an opportunity to the parties to tender their respective oral/documentary evidence. The Order passed by the learned Judge is, therefore, unsustainable and therefore, needs to be set aside. 8. Hence, the appeal is allowed. The impugned order is hereby quashed and set aside. Notice of Motion No.3831 of 1999 is restored to file for de novo decision after allowing the parties to lead evidence about membership of any of the appellants of the said society i.e. Shri Sankalp Co-operative Housing Society. Undoubtedly, all contentions, 8 on merits, are left open. Interim order passed in this Appeal shall continue to operate till the Notice of Motion is decided. (C.L.PANGARKAR, J.) (B.H.MARLAPALLE, J.)