ssm sm sm 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. 396 OF 2008 PETITION NO. 396 OF 2008 PETITION NO. 396 OF 2008 Shri Rajesh Shivdas Khandare & Ors. ...Petitioners Vs. Guruchhaya Co-op.Hsg.Soc.Ltd. & Ors. ...Respondents. Mr.V.A.Thorat, Sr. Counsel with Mr.Anilkumar Patil for the Petitioners. Mr.N.V.Walawalkar, Sr.Counsel with Mr.Deepak Thakare for Respondent No.1. Mr.A.Y.Sakhare, Sr.Counsel with Mr. Vinod Shinde for Respondent No.2. CORAM CORAM CORAM : R.V.MORE, J. : R.V.MORE, J. : R.V.MORE, J. DATED DATED DATED : 1st August, 2008 : 1st August, 2008 : 1st August, 2008. P.C. P.C. P.C. . Heard the learned Sr. counsel appearing for the respective parties. 2. The petition takes exception to the order dated 20th September, 2007 passed by the Member, Co-operative Appellate Court, Mumbai in A.O. No.135 of 2007 whereby the learned Member allowed Respondent No.1’s appeal and the Trial Court’s order passed below Exhibit-5 came to be quashed and set aside. Consequently, Respondent No.1’s application at Exhibit-5 came to be allowed and the Petitioners were ( 2 ) restrained from implementing and/or taking any action against Respondent No.1 in pursuant to the Resolution dated 29/10/2004 and Resolution No.16 dated 20/03/2005, allegedly passed by Managing Committee of Guruchhaya Co-operative Housing Society Limited. 3. The Respondent No.1 filed dispute being Dispute No.133 of 2006 in the Co-operative Court against the present Petitioners and Respondent No.2 challenging the legality and validity of the aforesaid Resolutions dated 29/10/2004 and 20/03/2005. By an earlier Resolution, Mr.Narayan Bhagat’s (who is claiming to be President of the Respondent No.1 Society) resignation was accepted and in his place Respondent No.2 was appointed. By later resolution, Managing Committee of the Respondent No.1 Society came to be substituted by new Managing Committee of which Petitioners are President, Secretary and Treasurer respectively. The case of the Respondent No.1 is that it is the tenant Co-partnership Society and came to be registered in the year 2003-2004. It is the Disputants’ case that the Respondent No.2 was initially co-opted as a Secretary of the Society in May, 2006, however, he resigned in the month of August, 2006. It was further contended that the present petitioners are not members ( 3 ) of the Respondent No.1 Society, yet claim to be office bearers of the Society. There are 29 members of Society, including the signatory to the dispute. The plot of land was allotted by CIDCO at Kamothe, New Mumbai, for the purpose of residential tenements for the members. Narayan Bhagat, the Chief Promoter called a meeting of Promoter members of the Society and in that meeting first Managing Committee for the tenure of 5 years was appointed w.e.f. 17/10/2003. Madhukar Maruti Bhagat, Narayan Bhagat, Sangita Khandagale, Ashok Bhopi and Gajanan Patil were appointed as Chairman, Secretary, Treasurer and members respectively. It was further case of the Disputants that in view of the weak financial status of the members, it was decided to sell the plot of land to the Developer, one Krishna Enterprises and accordingly, sought for permission from Registrar as well as the CIDCO for transfer of the said land. The District Deputy Registrar on 12/04/2006 granted permission to Respondent No.1 to sale the land. The Chairman Mr.Narayan Bhagat, however, received reply from CIDCO intimating that he is no more Secretary and by virtue of Resolution dated 20/03/2005 the Petitioners were appointed as a president, Secretary and Treasurer. In above circumstance the Respondent ( 4 ) No.1, was constrained to file aforesaid dispute, for relief mentioned above. The Respondent No.1 also filed application for temporary injunction restraining the petitioners from implementing Resolution dated 29/10/2004 and 20/03/2005. 4. The Petitioners’ contested this dispute by filing Written Statement. They submitted that Mr. Narayan Bhagat has already resigned from the post of Secretary as well as from the membership of the Respondent No.1 Society and the CIDCO has accepted his resignation. It was further submitted that the Petitioners are substituted as a Managing Committee Members by the resolution dated 20/03/2005. In these facts and circumstances of the case, the Petitioners claimed that the dispute is devoid of any substance and Respondent No.1 is not entitled for any interim injunction inasmuch as Resolution dated 29/10/2004 and 20/03/2005 are validly and legally passed. 5. The interim application was disposed of by the Co-operative Court after hearing both the sides. The Co-operative Court concluded that the Respondent No.1 is not entitled for the temporary injunction as claimed for the same was accordingly rejected. ( 5 ) 6. The Respondent No.1 being aggrieved, preferred an appeal before the Co-operative Appellate Court and as stated above by the impugned order the Respondent No.1’s application at Exhibit-5 was allowed and the Petitioners are restrained from acting upon the aforesaid Resolutions. 7. Mr.Thorat, the learned Senior counsel appearing for the Petitioners make twofold submissions. Firstly, the dispute itself is not maintainable in the present form and hence the petitioners could not have been restrained by an interim order from acting on above Resolutions and secondly, on the merits also, the Respondent No.1 is not entitled for any interim relief. Mr. Thorat the learned counsel appearing for the Petitioner further submits that Mr. Narayan Bhagat, who posed himself as a Chairman of the Society, proposed to sale the Societies property to one Karishma Enterprises. He further submits that the said Bhagat fabricated the newspaper public notice. In fact, those notices were never published. He further submits that the person who has fabricated the public notice etc. is not entitled for a relief of temporary injunction. ( 6 ) 8. Mr.Walawalkar the learned Sr. counsel appearing for the Respondent No.1 and Mr.Sakhare, the learned Sr.Counsel appearing for the Respondent No.2 pointed out that the first Resolution dated 29/10/2004, which is annexed at Exhibit 3 Page No.76 and Second Resolution dated 20/03/2005 which is annexed at Exhibit 4 Page 79 are procured by the Petitioners by forgery and fabrication of record. It was also contended that inspite of these resolutions in which some of the members are shown to have been removed from the membership of the Respondent No.1 Society, the document relied upon by the Petitioner themselves shows that these members participated in subsequent meetings of the Society. They further submitted that Mr.Narayan Bhagat is still the Chairman of the Respondent No.1 Society. They also relied upon the several Resolutions passed in the Managing Committee Meetings, which were presided by Narayan Bhagat. Both Mr.Walawalkar and Mr.Sakhare submit that if the interim injunction is not granted the Petitioners will continue their illegal act on the basis of the Resolutions which are challenged in the dispute and therefore, in that view of the matter, the petition is without any merit and the same is liable to be ( 7 ) dismissed. 9. Having heard the learned counsel appearing for the respective parties and having gone through the orders impugned alongwith relevant annexures to the Petition, I am of the opinion that, there is no merit in the petition. Firstly I will deal with the Petitioners contention regarding maintainability of dispute. In order to bring the dispute within the jurisdiction of the Co-operative Court either of the parties to the dispute, must be covered by the clauses (a) to (e) of Sub-Section 1 of Section 91 of the Maharashtra Co-operative Societies Act-1960. Sub-clause (b) of Section 91(1) reads as follows:- "(b) a member, past member or a person claiming through a member, past member or a deceased member of a society, or a society which is a member of the society (or person who claims to be a member of the society);" 10. The Respondent No.1 in his dispute has made a statement that the Petitioners though not members, are claiming to be the members of the Respondent No.1 ( 8 ) Society. In that view of the matter, I am of the opinion that the dispute as filed by the Respondent No.1 is maintainable. 11. So far as the merits of the matter is concerned, I have perused the copy of the Resolutions in question passed in meetings dated 29/10/2004 and 20/03/2005. Prima facie it reveals that the thumb impressions of the members, who allegedly shown to have attended the meeting dated 29/10/2004 have not been attested. The Resolution allegedly passed in meeting dated 20/03/2005, in which the Petitioners have been substituted as the members of the Managing Committee is also not free from doubt. In order to remove the member from membership of the Society procedure prescribed under bye-laws No.29 is required to be followed. There is nothing on record to show that this procedure was followed. Be that as it may. The Petitioners in order to show that new Managing Committee consisting Petitioners are elected have not brought on record any documents regarding the election of the Managing Committee of the Society. Not only that, some of the members who were shown to have resigned from the membership of the Respondent No.1 Society have also participated in subsequent ( 9 ) meeting of the Managing Committee of the Respondent No.1, Society. In this regard, the observations of the Co-operative Appellate Court is also relevant. The Co-operative Appellate Court in para 10 of the impugned order observed as follows:- "10. Bye-laws No.29 provides the procedure of Resignation by the Members. A Member who intends to resign shall give Three Months Notice in advance to the Society which shall approve by the managing Committee or the General Body. In that context when I called upon the Opponents to show the Minute Books or anything which indicates that all the 29 Original Members of the Society resigned. I do not find any such Resignations, Resolutions of the Managing Committee or even any such Meeting of accepting such Resolutions was organized at any point of time. Opponent Nos. 2 to 4 herein are now custodian or record and it is not difficult for them to produce the same but they failed. This leads to infer ( 10 ) that the opponents failed to prove that they are validly inducted Members." 12. The lower Appellate Court observed that the Respondent No.1 Disputant has come with a case of forgery and fraud against the Petitioners. The Co-operative Appellate Court further observed that the new members of the Co-operative Society cannot be enrolled by-passing provisions of section 22 of Maharashtra Co-operative Societies Act-1960. It was also concluded that for removal of members same procedure is prescribed under Maharashtra Co-operative Societies Act-1960, which the present case is not followed. In that view of the matter, the Co-operative Appellate Court allowed the Respondent No.1’s appeal and consequently injuncted the petitioners from acting upon the Resolutions in question. 13. So far as the contention of Mr.Thorat that Mr. Narayan Bhagat who has posed as the Chairman of the Respondent No.1 Society is also guilty of forgery is concerned, in my opinion, same is not relevant for the decision of the present Petition. The relief claimed in the Dispute by the Respondent No.1 is about the ( 11 ) legality and validity of above said Resolutions. It is plain contention of the Respondent No.1 that these Resolutions are created by the Petitioners by fabrication and fraud. The question, whether the Narayan Bhagat has committed forgery by manipulating the public notices is required to be decided at the hearing of the dispute. 14. In the facts and circumstances mentioned above, in my considered opinion, even the balance of convenience lies in favour of the Respondent. If injunction is not granted, the Petitioners in pursuant of the impugned Resolutions, will continue with their illegal activities. The prejudice, if any, caused to the petitioners by granting injunction, can be taken care of by directing Respondent No.1 to maintain status-quo regarding the suit property. Mr.Walawalkar, in this regard made statement that Respondent No.1 will maintain status-quo regarding the suit property till disposal of the dispute. In the facts and circumstances, I dispose of the petition by passing the following order:- O R D E R R D E R R D E R ( 12 ) 1. The statement of learned Senior Counsel for Respondent No.1 that the Respondents will maintain status-quo in regard to the plots allotted by the CIDCO in its favour is accepted. The Respondent No.1 shall accordingly, shall not transfer, alienate or create any third party interest in above plot hereinafter during the pendency of the dispute. 2. In case, dispute filed by Respondent No.1 is dismissed by the Co-operative Court, the Respondent No.1 shall indemnify the Petitioners for the losses and/or damages that may have been caused to the Petitioners and other members because of non development of the above plots. 3. In similar way, the Petitioners shall also indemnify, for the lossess/damages to the Society in case the dispute is allowed. ( 13 ) 4. The observations made in this order are prima- facie observations and same are made for the purpose of disposal of the present petition. The trial Court shall dispose of the dispute on its own merit and without being influenced by the present order. 5. In peculiar facts and circumstances of the case and in the interest of justice, the Co-operative Court Alibag is directed to dispose of the Dispute No.133 of 2006 as expeditiously as possible, in any case within a period of one year from the date of receipt of this order. 6. The Writ Petition is, accordingly, disposed of. ( R. V. MORE, J.) R. V. MORE, J.) R. V. MORE, J.)