1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 3021 OF 2008 WITH CIVIL APPLICATION NO. 8738 OF 2007 Kallam Sahakari Gruh Nirman Sanstha Maryadit, Kallam, Dist. Osmanabad Through its Chairman Shri. Subhash Dinanathappa Bhadange & another ....Appellants. Versus Sou. Vachala W/o. Shivajirao Maindad R/o. Kalam, Tq. Kalam, Dist. Osmanabad and others ....Respondents. Mr. N.P. Patil, Advocate for the appellants. Mr. V.D. Salunke, Advocate for the respondent No. 1. CORAM : K.U.CHANDIWAL, J. DATE : 1st July 2009 PER COURT : 1. At the initial stage, when the matter commenced, the unfortunate past events were highlighted by the counsel for the appellant which necessitated filing of affidavit to controvert the said so called false statements made during the petitions for leave to file or seeking condonation to file the appeal. Since such affidavit was not tendered, the counsel for respondent brought this aspect to the notice of this Court 2 with a request to take action or to proceed appropriately with the matter. 2. The counsel for the appellant agreed to work out the matter finally at the admission stage, or he should be given 8 days time to file the affidavit which he did not do in spite of availing 4 or 5 opportunities. It is in this situation the present appeal is finally heard at admission stage and accordingly disposed of without calling the record and proceedings. 3. The present appellant No. 1 was not a party to the suit R.C.S.No. 100/1999 moved by Vachala Maindad which has been decreed by the learned Civil Judge, Senior Division, Osmanabad on 6.3.2006. The sale deed through the Court was executed on 17th July 2007. 4. R.C.S.No.245/2007 is filed by Sudhir Vishwanathappa Tambve, the subsequent allottee from the co-operative housing society. In his suit injunction is not clamped on defendant (respondent in present appeal). 5. The counsel for the appellant/society and also the subsequent allottee Sudhir took me to the plaint and written statement in R.C.S.No. 100/1999 and canvassed that the learned Judge in the light of paragraph No. 8 of the written statement should have framed issue as society is involved and in the absence of such issue being framed the judgment is bad, it will not be binding to the rights of the society. The next contention was that suit or the sale deed is not binding on the society as 3 it was not a party to the proceedings and that everything has taken place behind the back of the society and as such, the transaction is illegal in view of the by-laws of the co-operative housing society. 6. The society while making applications before this Court seeking leave to file appeal and condone delay, filed affidavits dated 9.10.2007 and dated 16.10.2007 of Subhash Dinkarrao Bhadange, office bearer of the co-operative society in Civil Application Nos. 8739/2007 and 8738/2007, respectively. In these two affidavits the office bearer Subhash on behalf of the appellant society made a categorical statement about lack of knowledge to the society about R.C.S.No.100/1999. This is apparently a wrong calculated dismal statement made on oath. The record rebels against the society as Smt. Vachala has tendered before the Court her affidavit annexing paper proclamation dated 8.5.2003, notice to the society dated 21.5.2003 and reply of the society dated 22.6.2003. The cumulative effect of these three documents is that on 21.5.2003 the appellant society was aware of pending litigation of R.C.S.No. 100/1999. It was, in this situation, not open for Mr. Subhash to file false affidavits dated 9.10.2007 and 16.10.2007. The interpretation to notice dated 21.5.2003 made by the counsel for the appellant needs only to be discarded as the notice in unequivocal terms displays that it was annexed with the paper proclamation which has reference of R.C.S.No. 100/1999 including details of payment and copy of the agreement of sale. This is a major blow in the matter for the appellant. It has defused 4 and deflated entire stand of appellant of lack of knowledge of R.C.S. 100/1999. The counsel for the original plaintiff Sou. Vachala urged that this is a serious lapse on the part of the appellant suppressing facts and necessary action to be taken, under the procedure as contemplated under section 195 of Criminal Procedure Code, calling upon Subhash to file his reply or response to the notice contemplated by this Court. This Court, without further dissecting this aspect simply condemn the approach of the appellant in making a false affidavit on oath with warning to desist from doing so. 7. There was an agreement of sale executed by original owner of the property Vishnu in favour of Vachala. She has a decree dated 6.3.2006 based on that a sale deed dated 7.7.2007, executed through Court. In a suit for specific performance, it was not expected from learned Judge, to frame a issue for co-operative Housing Society. The vendor had apparently marketable title to divest. 8. The resolution of the society, dated 21.9.2003 and resignation referred is not by the original allottee, but it is by one Shamrao, whether he is Shambhau or somebody else one does not know. The fact remains such surrender of rights of Shambhau and acceptance by the same vide the resolution dated 21.9.2003 was apparently during the pendency of R.C.S.No.100/1999 and to the knowledge of society and subsequent allottee since there was a communication dated 21.5.2003. 5 9. Taking survey of facts, pleadings and communication, I find that since the appellant co-operative society was aware of the transaction and pending litigation, it cannot be heard to entertain that there was no notice of the transaction. If any rights of the society are adversely affected, they have remedies which incidentally have been adopted by the subsequent allottee Sudhir Tambve. The appeal sans merit. It is dismissed with respective civil applications. 10. The request to continue the ad-interim relief granted on 17.10.2007, in the above situation, is difficult to be acted upon, hence, refused. [ K.U.CHANDIWAL, J. ] ssc/fa3021.08