SHIVKISHAN versus SUJATA TARACHAND MAKHIJA AND ORS.
[2019] 12 S.C.R. 796, Supreme Court of India, 2019
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SHIVKISHAN
v.
SUJATA TARACHAND MAKHIJA AND ORS.
(Civil Appeal Nos.7652-7653 of 2019)
SEPTEMBER 27, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Maharashtra Cooperative Societies Act, 1960 –s.91 – First
Respondent (the disputant), an employee of Life Insurance
Corporation of India (LIC) opted for Plot No.2 in the Cooperative
Housing Society, meant principally for such employees– Allegedly,
in terms of seniority, she was entitled to be allotted the said Plot,
however it was illegally allotted to the appellant – Interim order
passed by the Cooperative Court injuncting the Society from
making any allotment in respect of Plot No.2– Despite the order,
registered sale deed executed by the Society in favour of the
appellant – Plea of the Society that it was the husband of the
disputant who was the original depositor and that she had attended
the meeting dtd. 18.12.88 not in her own capacity but as
representative of her husband – Cooperative Court inter alia found
that the the disputant could not claim to be the Member/deemed
Member of the Society and thus, was not entitled to any relief,
however, her husband was entitled to get sale deed executed after
getting all the formalities completed – Cooperative Appellate Court
held that the Disputant was senior Member of the Society as against
the appellant and was entitled to Plot No.2 opted by her – High
Court affirming the findings of the Appellate Court inter alia held
that the
allotment of plot in favour of the appellant was illegal and
directed the Society to follow the procedure in accordance with law
for allotment of the plot – Held: In view of the fact that the
Disputant was an employee of LIC and had admittedly deposited
Rs.4,750/-, her status was clearly that of Depositor –Thus, in the
face of such admission and the findings rendered by the Courts
below, the Disputant was a Depositor of the Society and like all
other Depositors was entitled to and had attended the meeting dtd.
18.12.88 in her own right – At no stage the husband of the
Disputant claimed that he was the Depositor in his own right and
entitled to allotment of any Plot – Money deposited by all the
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Depositors including the Disputant helped the Society to have the
requisite land whereafter the Plots could be carved and allotted
to the concerned members – On the other hand, at no stage the
Appellant made any such contribution – He was neither present
in the meeting dtd.18.12.88 nor had he submitted any application
along with requisite fees – Disputant opted for Plot No.2 and as
on that date there was nobody else apart from the Disputant who
opted for the said plot – These aspects of the matter be taken into
account by the authorities while acting in terms of the direction
issued by the High Court and the allotment be restricted to those
who exercised their option as on 18.12.88 and were not otherwise
allotted any plot and had not accepted such allotment.
Dismissing the appeals, the Court
HELD: 1.1 In the face of the admitted position that she
had deposited Rs.4750/- and the findings rendered by the Courts
below, it has to be concluded that the Disputant was a Depositor
of the Society and like all other Depositors was entitled to and
had attended the meeting dated 18.12.1988 in her own right. At
no stage the husband of the Disputant claimed that he was the
Depositor in his own right and entitled to allotment of any Plot.
Further, it is not the case of the Disputant and her husband that
over and above the entitlement of the Disputant, her husband
is also entitled to an additional Plot. The submission was always
that there was only one entitlement, in
exercise of which the
option was given for Plot No.2. If between the husband and wife,
the claim has always been only with respect to one entitlement,
it really made no difference whether the Disputant attended the
relevant meeting in her own right or as a representative of her
husband.  The fact of the matter is, an option was exercised in
favour of Plot No.2 and the issue is whether such option ought
to have been allowed and accepted or not. The communications
addressed by the Society were, normally in printed format where
the name of the addressee would be written after the printed
prefixes “Mr./Mrs.” and many such communications were
addressed to “Mr./Mrs. Makhija”. The record also shows that
some meetings were attended by the Disputant while some were
attended by her husband. But, considering the facts that the
Disputant was an employee of Life Insurance Corporation of India
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA AND ORS.
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and had deposited Rs.4,750/-, her status was clearly that of a
Depositor. It is a matter of record that the Depositors had
collectively raised funds with the help of which, the consideration
for purchase of the land over which the layout was to be formed,
could be arranged. All the required and incidental expenses thus
came from the funds raised by the Depositors and to that extent
the Disputant had definitely made her contribution. The money
deposited by all the Depositors including the Disputant had thus
helped the Society to have the requisite land whereafter the Plots
could be carved and allotted to the concerned members.  On
the other hand, at no stage the Appellant had made any such
contribution. [Paras 22-24] [816-G-H; 817-A-F]
1.2 It is accepted that the Appellant was neither present
in the meeting dated 18.12.1988 nor had he submitted any
application along with requisite fees. It is also accepted that he
had not deposited anything by way of deposit with the Society
before or on 18.12.1988, with the help of which the land could
be purchased by the Society. It is true that the tenor of the
Resolution passed by the depositors on 24.06.1984 shows that
no depositor was willing to take a bigger Plot but that resolution
was passed in the year 1984 and it was four years thereafter that
the day had arrived for exercise of choices or options.  For the
employees of Life Insurance Corporation it may be that the
Depositors at an earlier stage were not in a position to arrange
requisite funds and if the Society had to depend upon funding
from an outsider, on the strength of such resolution, the Society
could have garnered the requisite finances from an outsider. But
the facts on record disclose that no such funding from any
outsider was required to arrange the requisite finance towards
consideration for purchase of land. If no outsider had contributed
in any manner there is no reason why a Plot could be reserved
for such an outsider disregarding the claim of a Depositor with
the help of whose money the Society had reached the stage
where the Plots could be allotted to the concerned. In a situation
where none of the other Depositors had even made a claim with
respect to Plot No.2 and if the Disputant had exercised such
option, the Plot had to be allotted to the Disputant. No outsider
could have had a better claim as against any Depositor as
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regards to that Plot. As on 18.12.1988, the Appellant had not
even submitted his application form for membership whereas all
the Depositors including the Disputant had submitted such forms
along with requisite fees for membership.  Even on this count,
the claim of the Disputant stands on a better footing as against
the Appellant. [Paras 25, 26] [817-G-H; 818-A-E]
1.3 It was accepted by the then Secretary in his cross-
examination that:- a) the Appellant had not paid any amount
towards the cost of shares of the Society and admission fee
towards membership of the Society at any time before or on
18.12.1988. b) the notice calling the meeting dated 18.12.1988
had not mentioned that choice to be exercised by the Depositors
was restricted to plots other than Plot Nos. 1 and 2. It was also
accepted by the counsel for the Appellant that neither any
invitation was received by the Appellant to attend the meeting
nor did the Appellant attend the meeting and no payment was
made by the Appellant before 18.12.1988. No document was
produced or relied upon to say that there was any allotment of
Plot Nos.1 and 2 in favour of anybody before the meeting was
actually held on 18.12.1988. [Paras 27-29] [818-F-H; 819-A-B]
1.4 In the circumstances, the conclusions drawn by the
High Court that the allotment of Plot No.2 in favour of the
Appellant was illegal and that the Resolution passed by the
Society in its meeting dated 25.03.1990 and the sale deed
executed by the Society on
25.04.1989 were required to be
quashed, are absolutely correct and fully justified. As regards
other conclusions drawn by the High Court, anything need not
be said as the Petition for Special Leave to Appeal filed by the
Disputant was disposed of by this Court on 15.01.2016.  The
Disputant was a Depositor of the Society; that she was entitled
to attend the meeting dated 18.12.1988 in her own right; that
she had preferred requisite application for membership and had
paid requisite fees on 18.12.1988 itself; that she had opted for
Plot No.2 and as on that date there was nobody else apart from
the Disputant who opted for said Plot No.2. These aspects of
the matter shall be taken into account by the concerned
authorities while acting in terms of direction (v) issued by the
High Court which are quoted by us in para 15 and the allotment
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA AND ORS.
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shall be restricted to those who had exercised their option as
on 18.12.1988 and were not otherwise allotted any plot and had
not accepted such allotment. [Paras 30-33] [819-E-H; 820-A-B]
Sujata Tarachand Makhija vs. Shivkishan and Ors.
Order of Supreme Court dated 15.01.2016 in
SLP(C)No.136 of 2016 – referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 7652-
7653 of 2019.
From the Judgment and Order dated 21.09.2015 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition
No. 1460 of 2006 and order dated 01.08.2016 in Miscellaneous Civil
Application No. 206 of 2016 in Writ Petition No. 1460 of 2006 (D).
 Anupam Lal Das, Sr. Adv., Parthiv K. Goswami, Ms. Diksha
Rai, Ms. Palak Mahajan, Ishan Bisht, Ratnesh Kumar, Anirudh Singh,
Krishanu Barua, Ms. Ritu Sharma, Advs. for the Appellant.
Vinay Navare, Sr. Adv., Ms. Sushma V. Deshpandey, Ms. Gwen
Karthika, Ms. Abha R. Sharma, Gagan Sanghi, Rameshwar Prasad
Goyal, Rajat Singh, Lokender Raghav, Farrukh Rasheed, Chander
Shekhar Ashri,  Advs. for the Respondents.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
2. These appeals challenge the decisions of the High Court1,
namely, (i) Judgment and Final Order dated 21.09.2015 passed in Writ
Petition No.1460 of 2006 and; (ii) Final Order dated 01.08.2016 passed
in Miscellaneous Civil Application No.206 of 2016 in Writ Petition No.
1460 of 2006(D).
3. The facts
leading to the filing of Dispute No.136 of 1989 under
the provisions of Section 91 of the Maharashtra Cooperative Societies
Act, 1960 (‘the Act’ for short) from which present appeal has arisen,
as culled out from the decision of the Cooperative Court are as under:-
“The opponent No.1 is a duly registered Cooperative Housing
Society having its registered office at Sneha Nagar, Nagpur. The
1 High Court of Judicature at Bombay, Nagpur Bench, Nagpur
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opponent No.2 is the then Secretary of the opponent No.1 Society.
The disputant is an employee of Life Insurance Corporation India
and is working at Nagpur. The employees of the Life Insurance
Corporation are admittedly the members of the opponent No.1
Society and have a preferential claims over other members who
are not working in the L.I.C. It is alleged that opponent No.2
being a Secretary has indulged himself in illegal activities including
misappropriation of funds of the Society for his own use. It is
also alleged that the opponent No.2 has used to take the amounts
from the members of the Society in cash and used to
misappropriate the same as alleged in para – 1 & 2 of the dispute.
It is further stated that as per policy of the Society, the senior
members shall have preferential claim in the matter of allotment
of plots of the Society. The disputant with an intention to get the
allotment of plot in the Society, paid certain amounts on dated 5-
11-1981 vide receipt No.334 on dated 9-9-1983; and accordingly,
the Society assured the disputant that he shall be allotted the plot
admeasuring 3000 Sq. Ft. in the Layout in Kh. No.152/3 of Mouja
Sornalwada on dated 18-12-1988, disputant submitted her
application for the membership/allotment of shares with the Form
– ‘E’ & ‘I’ to the Secretary of the society.  In the: said meeting,
she was allowed to give her choice for allotment of plot to her,
as per the seniority list, then prepared on dated 15-12-1988,
wherein her name appears at Sr. No.5. On the same day, the
disputant also deposited an amount of Rs.105/- as per demand
of the society.  But neither receipt of the said amount was issued
to her nor society has communicated any decision within 3
months from the date of receipt of her application for membership,
and hence, she deemed to be a member of the opponent No.1
Society; and as such, she is entitled to claim a plot in dispute.  It
is further alleged that the plot No 2 has been wrongly allotted to
the opponent No.3, who claims to be a member of opponent No.1
Society. It is also stated that disputant is a senior member to the
opponent No.3.  However, the society has illegally executed the
sale deed of the said plot on dt. 25-10-1989 in favour of opponent
No.3, who is not eligible to claim the said plot. In view of this, it
is stated that the allotment of plot in dispute to the opponent No.3
by society vide Resolution No.5 passed in A.G.M. in dated 25-
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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3-1990, is illegal and required to be quashed and set aside, as
alleged in Para 5 (a) & (b) of the dispute.  It is also stated that
the disputant deposited the amount of Rs.3,000/- on dt. 5-11-1981,
vide receipt No.334, Rs.4,750/- as per letter of the society dt. 9-
9-1983 by cheque No.105998, dt, in 19-8-83; Rs.2500/- as per
letter of opponent No.2 dt.16-10-1987; Rs.3000/- by self cheque
No.503079, dt. 17-9-87: Rs.5000/- as per letter dt. 14-10-88
Rs.105/- or on dt.18-12-88. Thus, it is stated that the disputant
has paid in all total amount of Rs.18,355/- to the opponent No.1
society from time to time as alleged and sated in para – 5[c] of
the dispute.  It is further alleged that in the meeting dt. 18-12-
1988, the Secretary has allotted the plots according to his own
choice to various members of the society excluding plot Nos.1
& 2 along with other plots.  It is further stated that the disputant,
being a senior member is entitled to claim plot No plot No plot 2
in the said layout.  In spite of this, the opponent Society illegally
not allotted the said plot to her and hence, she issued a notice
through Advocate on dt. 23-12-1988 to the opponents calling upon
them to allot the plot No.2 and execute the sale deed for the
same.  However, till filing of the dispute, the disputant did nether
receive any reply to the said notice nor any positive action by
the society as alleged in para 6 to 10 of the dispute and hence,
disputant constrained to file this dispute.”
4. The Disputant namely the first Respondent herein thus alleged
that Plot No.2 was illegally allotted to the Opponent No.3 (the Appellant
herein) and prayed that the Resolution No.5 dated 25.03.1990 as well
as the sale deed dated 25.10.1989 executed in favour of the Appellant
be set aside. It was submitted:-
a) The Disputant, an employee of Life Insurance Corporation
of India had been paying amounts as stated above to the
Society in the capacity of a Member.
b) She had deposited an amount of Rs.18,355/- from time to
time till the Lay-out was approved on 01.12.1988.
c) In the meeting held on 18.12.1988 she had submitted her
application for membership/allotment of shares in Forms ‘E’
& ‘I’,  had deposited a sum of Rs.105/- as demanded by
the Society and had opted for said Plot No.2.
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d) Though, in terms of seniority, she was entitled to be allotted
Plot No.2, the Secretary of the Society had allotted said Plot
wrongly and illegally to the Appellant.
She claimed following reliefs:-
“(b) direct the opponents to allot Plot No.2 to the disputant in
scheme No.2 at Khasra No. 152/3 of Mouza-Somalwada, Nagpur
and further execute the sale deed in respect of the said plot in
favour of the disputant and hand over the possession of the said
plot to the disputant.
(c) prohibit the opponents permanently from allotting Plot No.2
in Scheme No.2 at Khasra No.152/3 of Mouza – Somalwada,
Nagpur or dealing with the same in any manner with any other
person that the disputant, either themselves or through their
servants, agents, attorneys etc.”
5. According to the record, an interim order was passed on
25.04.1989 by the Cooperative Court at Nagpur in said Dispute injuncting
the Society from making any allotment in respect of Plot No.2.
However, despite such interim order, a registered sale deed was
executed by the Society in favour of the Appellant in respect of said
Plot on 25.10.1989.  Later, in the General Body Meeting of the Society
held on 25.03.1990 the allotment of Plot No.2 and the execution of sale
deed in favour of the Appellant was confirmed vide Resolution dated
25.03.1990.
6. Thereafter, by way of amendment paragraphs 5(a), (b) and
(c) were inserted in the Dispute Application and it was prayed that the
Resolution dated 25.03.1990 and the sale
deed dated 25.10.1989 be
quashed and set aside. Said paragraphs 5(a), (b) and (c) were:-
“5.(a) In the meeting of the Society held on 18-12-1988 at Jagat
Restaurant, the disputant submitted her application for
membership/allotment of shares with Form “E” and “I” to the
Secretary of the Society, thereafter she was allowed to give her
choice for allotment of plot to her as per the seniority list then
prepared on 18-12-1988 wherein her name appears at Sr. No.5.
Disputant also deposited an amount of Rs.105/- on 18-12-1988
as demanded by the Society. However, no receipt was then
issued to her. That the opponent No.1 Society has not
communicated any decision to the disputant within three months
from the date of receipt of her application for membership
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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submitted by her on 18-12-1988 and as such she has become
deemed member of the opponent No.1 Society and as such she
is entitled to claim the plot in dispute.
5. (b) Plot No.2 has been wrongly allotted to opponent No.3 who
claims to be member of opponent No.1 society by respondent
on dt. 25-3-1990 passed by the A.G.M. of the opponent No.1
Society superseding the claim of the disputant for the said plot
being senior to him. It is now learnt that the Society has also
executed sale deed on 25-10-1989 of the said plot in favour of
opponent No.3 who is not eligible to claim the said plot.  However,
the date on which the said sale deed was executed is not
disclosed by the present Secretary and President of opponent
No.3 by the opponent No.1 Society vide Resolution No.5 dated
25-03-1990 passed by the Annual General Meeting of the Society,
be declared illegal and it be quashed and set aside.  Similarly,
the sale deed of the said plot, executed on 25-10-1989 by the
opponent No.1 Society in favour of the opponent No.3 be also
declared illegal and it be quashed and set aside with direction to
the opponent No.1 Society to allot the said plot to the disputant
and execute proper transfer deed by way of sale deed and/or
lease deed in her favour and opponent No.1 and 2 be directed
to deliver vacant possession of the said plot to the disputant.
5. (c) That the disputant deposited an amount of Rs.3000/- on
5-11-1981 vide receipt
No.334.  That the disputant received letter
dated 9th Sept., 1983 from the Secretary of opponent No.1
Society asking her to pay Rs.4750/- within 20 days.  This amount
was termed as balance amount.  Accordingly, the disputant paid
Rs.4750/- to the opponent No.1 Society by cheque No.105998
dt. 19-9-1983 drawn on Central Bank of India, Kingsway Br.
Nagpur, within a stipulated time limit, and the said cheque had
been encashed by the society on 6-12-1983.  However, no receipt
was issued by the Society for the said payment received by it
from the disputant.  That the disputant received letter dt. 16-10-
1987 from Shri N.H. Deshpande, Secretary of opponent No.1
Society, asking her to pay an amount of Rs.2500/- within a week.
This payment was specified as dues – 1) N.A taxes, 2)
Registration charges, 3) Membership fee and 4) Other
miscellaneous expenses.  Accordingly, the disputant paid Rs.2500/
- in cash to opponent No.2 as Secretary of opponent No.1 society
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within one week of the receipt of the said amount recovered by
him till this dated. The disputant further paid an amount of
Rs.3000/- to the opponent No.2 as Secretary of opponent No.1
Society, by self cheque No.503079 dt.17-9-1987 drawn on Central
Bank of India, Branch, Nagpur. The said cheque was encashed
by opponent No.2 and has received the said amount from the
Bank, However, no receipt is issued till this dated for the said
payment made by the disputant. Disputant further received letters
dated 14-10-1988 followed by letter dated 29-10-1988 from
Secretary of the opponent No.1 Society asking her to pay
Rs.5000/- as development charges to N.I.T. Disputant paid an
amount of Rs.5000/- as opponent No.2 by an intermediatory by
withdrawing amount of self cheque No.0738632 dt. 26-10-1988
drawn on Canara Bank, Ramdaspeth, Nagpur. However, no
receipt is issued by opponent No.2 for the said payment received
by him. Similarly disputant paid an amount of Rs.105/- to the
opponent No.1 Society in the meeting held on 18-12-1988 at Jagat
Restaurant, Nagpur. No receipt for this payment was also issued
to the disputant has paid an amount of Rs.18355/- to the opponent
No.1 society under specified heads, as and when demanded by
the society, from time to time, an amount of Rs.3000/- was
refunded by the Secretary by Cheque No.7674 drawn on Nagari
Sahakari Bank, Nagpur and cashed on 22-03-1982. Inference
drawn in preliminary objection with regard to this refund, by the
Secretary on 18-01-1989 in this Court, are neither valid nor
correct.”
 7. In the written statement dated 03.05.1991 filed on behalf of
the Society, it was asserted that the husband of the Disputant was the
original depositor; that the Disputant had initially made a deposit of
Rs.3,000/- which was withdrawn subsequently and as such, she had
ceased to be a depositor; that she had attended the meeting dated
18.12.1988 not in her own capacity but as representative of her husband.
It was asserted:-
“As is already submitted by the opponent in the forgoing para,
husband of the disputant is the Depositor of the opponent society
and as such the disputant was allowed to attend the said meeting
as a representative of her husband and not as a member. As such
the disputant does not acquire any right in the affairs of the society
by virtue of mere attendance in the meeting held on 18-12-1988.
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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It is specifically denied that the disputant submitted an application
for membership or allotment of shares with Form-E and I to the
then Secretary of the Society the opponent No.2. It is stoutly
denied that the disputant deposited an amount of Rs.105/- to the
society towards membership. It is further submitted that as on
the date of the said meeting the disputant had already ceased to
the member of the society and as such she had no right to give
her choice for the allotment of plots. The alleged choice by the
disputant was on behalf of her husband who admittedly is the
depositor of the society. It is specifically denied that the name
of the disputant appears at Serial Number 5 in the seniority list.
It is also submitted that having once known that the disputant
has ceased to a member of the society about 6½ years prior to
the meeting that was held on 18-12-1988, the disputant is trying
to mislead to this Hon’ble Court by claiming that she was
readmitted as the member of the society by the principle of
deemed membership. At the cost of repetition, it is denied that
the disputant deposited an amount of Rs.105/- to the society since
the disputant had not applied for membership or rather did not
have any right to apply so, the society did not communicate
anything to her. The alleged payment by the disputant to the
society was on behalf of her husband and as such no right is
carved out in favour of the disputant as a
member of the
society………….
It is specifically denied that the disputant was sent a letter dated
9th September, 1983 asking to pay Rs.4750/-.  It is also denied
that the disputant paid an amount of Rs.4750/- on her behalf.  It
is submitted that the said transaction was between the husband
of the disputant and the opponent Society and the disputant has
no business with the said transactions.  It is further submitted
that the accounts of the opponent Society are audited upto dated
and all receipts had been passed from time to time which fact is
cleared from the audited accounts.”
8. Mr. N.H. Deshpande, the then Secretary of the Society also
filed his written statement on 06.10.1994 stating inter alia:-
“It is submitted that disputant preferred to withdraw her
membership of the Society. The Society refunded her
membership fees and deposit to the disputant vide Cheque
No.7678 for Rs.3,000/- drawn on Nagpur Mahila Nagrik Sahakari
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Bank. The said cheque was encashed  by the disputant on
22.3.1982. As such the disputant ceased to be the member
depositor of the opponents society and claim any plot much less
to give a preference for it. Contents of this para so far as they
relate to the matter of record are not disputed. It is specifically
denied that the disputant has preferncial claim to get the plot No.2.
It is submitted that the plot No.2 was never allotted to the
disputant as she was not the depositor of the society when
allotment was made.”
…
It is specifically denied  that the disputant submitted an application
for membership or allotment of shares with Form-E and I to the
then Secretary of the society, the opponent No.2. It is stoutly
denied that the disputant deposited, an amount of Rs.105/- to the
society towards membership.
…
The alleged choice by the disputant was on behalf of her husband
who admittedly is the depositor of the Society.
…
It is denied that the opponent No.1 issued letter on 9.9.1983,
asking her to pay Rs.4,750/- within 20 days as alleged.  It is denied
that the disputant has deposited the alleged amount according to
the direction of this answering opponent. It is denied that the
opponent No.2 issued a letter on 6.10.1987 to the disputant,
asking her to deposit an amount of Rs.2,500/- within a week for
the purpose of a(a) N.A. Taxes, (b) Registration charges, (c)
Membership fee and other miscellaneous expenses as alleged.
It is specifically denied that the
disputant has paid Rs.2,500/- in
case to Opponent No.2, as Secretary of opponent No.1 Society
as alleged.”
9. Said Mr. N.H. Deshpande examined himself as witness and
in his examination-in-chief stated as under:-
“As Smt. Makhija, the Plaintiff who had withdrawn her deposit
sometime in the year 1982 and hence she did not have any right
to remain present in the meeting held on 18.12.1988, as a
depositor member.  However, the Society allowed her to remain
present in the meeting as her husband’s representative.  All the
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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depositor members had given their options for the plots except
Plot Nos.1 and 2.  Smt. Makhija, however, gave her option for
Plot No.2.  At that time, the Society suggested her to give her
option for any other plot except Plot Nos.1 and 2 as per the
criteria decided earlier.  However, she refused to change her
option.”
In his cross-examination the witness however stated:-
“It is true that prior to 18.12.1988, I and Plaintiff were working
together in LIC Office…
…The Plaintiff’s husband was working as a Professor in G.S.
Commerce College.
…
“I had issued a Notice of Meeting to be held on 18.12.1988, under
my signature.  A copy of the said Notice is kept at Ext.D-1. The
entire matter in the said Notice is correct. Now, I have been
shown the Ext.D-1. It is a copy of the proceedings of the meeting
dated 18.12.1988. It is correct. It is true that only 21 plot
depositors were present for this meeting.  It is also true that the
Respondent No.3 was not present for this meeting.  If it is the
contention that nowhere in the Notice at Ext.D-1, it is mentioned
that choice for a plot should be given by depositors except Plot
Nos.1 and 2, the contention is correct.
…
It is true that the said three forms (Ext. O-2 and O-3) were not
given in the said meeting held on 18.12.88 by her husband.
…
If it is the contention that the Respondent No.3 had not paid
rs.105/-, vis. Rs.100/- towards cost of shares and Rs.5/- as
admission fee
during the meeting on 18.12.88, the contention so
made is correct.  It is true that the petitioner was present for
the meeting held at Hotel Jagat on 18.12.88.  If it is the contention
that the Petitioner had filled in and signed the Share Application
Form and Forms ‘E’ and ‘I’ during the meeting on 18.12.88, and
had headed over the same to me, the contention is correct.
Similarly, if it is the contention that the Petitioner had made
payment of Rs.105/- to the Society, the said contention is correct.
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Question: On which date the allotment of the said Plot Nos.1
and 2 was made and by whom?
Reply:  I myself have allotted both these plots.  However, I do
not remember the date on which the allotment of these two plots
was made ….
If it is the contention that even though the Hon. Court had passed
an order on 25.4.89 in respect of allotment of the said Plot No.2
– placed in this suit at Exh. 5, I have allotted the said Plot to the
Respondent No.3 on 25.10.89, such contention is correct.
…
…
…
Now I have been shown the Exh. D-6 which is a Xerox copy
of the letter dated 9.9.83 written by the Society to the Plaintiff.
My signature is on the original letter.  In the said letter, I have
informed the Petitioner to pay an amount of Rs.4,750/- within a
period of 20 days which is correct.  If it is the contention of the
Plaintiff that the same amount was paid to me by a cheque and
that as the Witness says the said amount was paid to me for the
Society by cheque, the said cheque was deposited in the Society’s
account which has been cleared, the contention is correct.
…
  …
…
I am shown Exh. D-11.  It is a copy of the proceedings of the
meeting of Plot Depositors held on 18.12.88.  If it is the contention
that the said proceedings do not clearly mention that the plot
depositors should given their choice for allotment of plots other
than Plot Nos.1 and 2, it is correct.”
10. After considering the record, the Cooperative Court found
that the Disputant had proved that she
had paid a sum of Rs.4,750/- to
the Secretary of the Society; that she had handed over the membership
application Forms ‘E’ & ‘I’ and requisite fees to the then Secretary of
the Society in the meeting dated 18.12.1988 but the Disputant could
not claim to be the Member or deemed Member of the Society and
that she was not entitled to any relief as prayed for. However, the
Cooperative Court observed that her husband was entitled to get sale
deed executed in respect of Plot No.26 after getting all the formalities
completed. The Dispute Application was thus disposed of on 31.01.2004.
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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11. The Disputant being aggrieved, filed Appeal No.11 of 2004
in the Cooperative Appellate Court, Nagpur, under Section 97 of the
Act.  The Cooperative Appellate Court considered the rival submissions
and observed:-
“(11) Admittedly the meeting of the Depositors dated 8-12-88 is
the first meeting after the layout plan was sanctioned by the NIT
on 1-12-88. There is no document to show that before 18-12-88
that some plots were reserved for the senior members or for the
special category of the members. This being the first meeting of
the depositors it was not possible that the plot No.2 was already
allotted to some other depositor members. When the disputant
had exercised her option for plot No.2 also it cannot be said that
nobody was interested for the plot No.2” as mentioned in the
minute of the meeting dated 18-12-88 Ex-D-11. I am, therefore,
not inclined to accept the case of the respondent society that plot
No.2 was not available for allotment in the meeting dated 18-
12-88.
(12) It is now to consider whether the disputant was present in
the meeting dated 18-12-88 on behalf of her husband.  Admittedly
according to the disputant she had submitted her application for
membership/allotment of shares with form “E” & “I” to the
secretary of the society and thereafter she was allowed to give
her choice for allotment of the plot as per seniority list then
prepared. She has also deposited the amount for Rs.105/- on 18-
12-88 required for membership. The then secretary opponent
No.2 has deposed at Ex.91 and admitted that the disputant was
present in the meeting dated 18-12-88 and she had submitted
application for membership for herself with form “E” & “I” and
had deposited the amount of Rs.105/- for which no receipt was
given to her.  He had not given the receipt to any of the depositors
who had submitted their forms for membership on that date.
Upon this evidence the learned trial court has held that the
disputant has proved her case that she submitted her application
along with form “I” & “E” and paid the entrance fee Rs.5/- and
share amount of Rs.100/- total Rs.105/- on 18-12-88. The
findings have not been challenged by the opponents by filing the
appeal.”
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12. It held that since the application for membership was given
by the Disputant on 18.12.1988 and she was not communicated any
decision in respect of her application, by virtue of Section 22 of the
Act she became deemed Member of the Society after the expiry of
three months; and on the other hand, the Appellant and certain other
persons were admitted as Members of the Society only in the meeting
dated 25.03.1990; and as such, the Disputant was a senior Member of
the Society as against the Appellant and was entitled to Plot No.2 opted
by her.  The Cooperative Appellate Court thus set aside the order dated
31.01.2004 passed by the Cooperative Court and allowed Dispute
No.136 of 1989 with following directions: -
“(4) It is declared that the allotment of plot No.2 in favour of
opponent No.3 by Resolution No.5 dated 25-3-1990 passed in
the Annual General Meeting of the opponent No.1 Society and
the sale deed dated 25-10-1989 executed by the opponent No.1
in favour of opponent No.3 in respect of plot No.2 are illegal
and hence those are quashed and set aside.
(5) The opponent No.1 society is directed to allot plot No.2 to
the disputant in scheme No.2 Khasra No. 152/3 of mouza-
Somalwada, Nagpur and further directed to execute the sale deed
in respect of said plot No.2 in favour of disputant on payment of
remaining amount of cost of the plot giving credit to the amount
deposited by her i.e. Rs.4750/- and handover possession of the
said plot to her.”
13. The
Appellant being aggrieved, approached the High Court
by filing Writ Petition No. 1460 of 2006.  While affirming the findings
of the Cooperative Appellate Court, the High Court observed as under:-
“8.In the present case, it is undisputed that the society had neither
taken any decision nor  had communicated any decision to the
respondent no.1 rejecting her claim for membership of the society.
Therefore, as per the deeming fiction, the respondent No.1
became member of the society after three months from the date
of application. The respondent No.1 undisputedly submitted her
application for membership on 18th December, 1988 and as the
decision was not taken by the society within three months it is
to be held that the petitioner became member of the society from
18th March, 1989. The contention of the society that the
application of the petitioner came to be rejected in the meeting
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
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held on 25th March, 1990 cannot be accepted as the petitioner
became member of the society much earlier and therefore,
rejection of her application seeking membership, on 25th March,
1990 is inconsequential.
…
It is clear from the pleadings and the evidence on the record that
the claim of the respondent No.1 for Plot No.2 has not been
considered by the society treating her to be a member of the
society w.e.f. 18th March, 1989.  Even if the submissions made
on behalf of the petitioner that the option given by the respondent
No.1 for plot No.2 on 18th December, 1988 cannot be accepted
on the ground she was not the member of the society on that
date, it goes unexplained as to why the entitlement of the
respondent No.1 for plot No.2 has not been considered when it
came to be allotted to the petitioner on 25th March, 1990.  The
respondent No.1 acquired the membership of the society by
deeming fiction on 18th March, 1989 i.e. much before 25th
March, 1990.
In these facts, I find that the allotment of Plot No.2 in favour of
the petitioner on 25th March, 1990 without considering the claim
of the respondent No.1, is illegal.  The finding recorded by the
Cooperative Appellate Court in this regard are proper.”
14. The High Court, however, found that the Disputant could not
have given option for Plot No.2 on 18.12.1988 as she was not a
Member of the Society on that date; that she acquired the membership
rights on and after
18.03.1989; that allotment of Plot No.2 to the
Appellant was without following proper procedure and was done
arbitrarily and that after quashing the allotment it must be left to the
Society to follow the procedure in accordance with law for allotting
Plot No.2.
15. In the premises, the operative part of the order passed by
the High Court was as under:-
“i) the impugned orders are modified.
ii) It is declared that the allotment of Plot No.2 in favour of the
petitioner is illegal.
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iii) The resolution No.5 passed by the society in its meeting held
on 25th March, 1990 regarding the allotment of Plot No.2 in
favour of the petitioner and the sale-deed executed by the society
in favour of the petitioner on 25th October, 1989 in respect of
the Plot No.2 are quashed.
iv) The claim of the respondent No.1 for allotment of Plot No.2
as made in the dispute is rejected.
v) It is left open for the society to consider the allotment of plot
No.2 in favour of its member, however, it is clarified that while
allotting Plot No.2 the society shall follow the same procedure
as was followed by it in the year 1988 while allotting the other
plots to its members.
The petition is partly allowed in the above terms.  In the
circumstances, the parties to bear their own costs.”
16. The aforesaid judgment and order passed by the High Court
was challenged by the Disputant by filing Special Leave Petition (Civil)
No. 136 of 2016 which was dismissed by this Court on 15.01.2016 with
following observations2 :-
“We find no ground to interfere.
The special leave petition is dismissed.  However, it goes without
saying that the petitioner may avail the remedy granted by the
High Court.  In the event, petitioner is aggrieved by the order of
the society, she may approach the High Court in accordance with
law.  In case she approaches the High Court, the matter will be
dealt with expeditiously.”
17. In this appeal, we heard Mr. Anupam Lal Das, learned Senior
Advocate for the
Appellant, Mr. Vinay Navare, learned Senior Advocate
for the Disputant and Mr. Gagan Sanghi, learned Advocate for the
Society.
18. It was submitted by Mr. Lal Das, learned Senior Advocate
that in the meeting held on 24.06.1984 all the depositors had submitted
that none of them was interested in two big sized plots admeasuring
2 Order dated 15.01.2016 in SLP(C)No. 136 of 2016 – Sujata Tarachand Makhija vs.
Shivkishan and Ors.
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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5000 square feet each and that the society could give those plots to
persons other than the depositors. The Resolution to that effect was
as under:-
“(10)  The depositors told that nobody among them is interested
for such big size of Plot and the society should give it to the
persons other than us who are interested in it.  Resolution to this
effect has been passed in the meeting.”
It was further submitted that (i) the husband of the Disputant
was present in the meeting but no grievance or objection was raised
either in said meeting or in subsequent meetings held on 27.08.1985,
28.09.1987 and 16.10.1988; (ii) the Disputant was not a member of the
Society and therefore could not have made any choice and opted for
Plot no.2; (iii) the Appellant was rightly inducted as member of the
society and allotted Plot No.2; (iv) though the decisions of the Society
in accepting the application of the Appellant for membership and
allotment of Plot No.2 were ratified in the General Body Meeting dated
25.03.1990, they would relate back to 18.12.1988 and the Appellant
would be senior to the Disputant as member of the Society; (v) the
application of the Disputant seeking membership of the Society in place
of her husband was also rejected in said meeting dated 25.03.1990.  Mr.
Lal Das, learned Senior Advocate however fairly accepted that the
Appellant was not present in the meeting dated 18.2.1988 and that
neither was he invited to
attend said meeting nor had he submitted
application form for membership and deposited requisite fees.
19. Mr. Vinary Navare, learned Senior Advocate for the
Disputant submitted that (i) she was the employee of Life Insurance
Corporation, not her husband; (ii) the Society was for the employees
of Life Insurance Corporation; (iii) as found by the Courts below she
had paid a sum of Rs.4750/- to the Secretary of the Society which was
accepted by the then Secretary in his deposition though it was stoutly
denied in the written statement filed earlier; (iv) she had handed over
the membership application Forms ‘E’ & ‘I’ along with requisite fees
to the then Secretary of the Society in the meeting dated 18.12.1988
which fact was also accepted by the then Secretary; (v) as Depositor
of the Society, she was entitled to claim Plot No.2; (vi) in the meeting
dated 18.12.1988 nobody else had claimed Plot No.2 and as such she
had a better claim to said Plot as against anybody else; (vii) the
Appellant was neither a Depositor nor a member of the Society and
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as such could not be allotted Plot No.2 disregarding the claim of the
Disputant.
20. Mr. Gagan Sanghi, learned Advocate appearing for the
Society placed the relevant record for perusal of the Court and submitted
that the amount of Rs.4750/- which the then Secretary had accepted
to have been  received from the Disputant was credited to the account
of the Society.
21.  At this stage, the Resolution dated 18.12.1988 passed by
the Society needs to be extracted:-
“The meeting of depositors held on 18/12/88 at 9:30 AM at Jagat
Hotel Nagpur.
The following depositors attended the meeting
(1) Shri Kelkar (2) Prayaji (3) Durani (4) Sh Kurve (5) Bhambani
(6) L.G. Deshpande (7) Joshi (8) Kashikar (9) Shri Vaidya (10)
Bhadagne (11) Patait (12) Sahu, (13) Sonone (14) Jairaman (15)
Yawalkar (16) Prayagi (17) Nanoti (18) Arvikar (19) Smt Mishra
(20) Smt Makhija on behalf of T D Makhija (21) Pillay
The following Business transacted in meeting:
(1) Last meeting minutes confirmed.
(2) Shri Changde old member ex-Secretary presided over the
meeting.
(3) The Secretary briefed the depositors about the developments
in new layout.  The Secretary requested Shri Changde to
proceed further with allotment of plot.
(4) The choice of allotment has been called for from every body
for 1st pref.  IInd preference and IIIrd preference.
(5) Accordingly everybody gave the choice and as per criteria
decided earlier by depositors the plot Nos. have been allotted
to them.
(6) But Smt. Makhija
who attended the meeting on behalf of
Mr. Makhija was interested in plot No.6 only.  She pleaded
that even though the criteria is decided, the said plot No.6
must be allotted to Mr. Makhija.  All the depositors tried to
convince her but in vain.  Lastly she gave choice under her
signature for plot No.6 (1st preference) and plot No.2 second
preference.
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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It was cleared in the meeting that the plots are being allotted as
per seniority of depositors hence plot No.6 cannot be allotted to
Mr. Makhija. As plot Nos.1 and 2 were already allotted as
nobody was interested in them the question of allotment of Plot
No.2 does not arise.
Finally, Mr. Changde declared the allotment as per criteria and
the number of plot before each name have been allotted.  The
letter of allotment have also been issued to them.  For the
absentees the plot has been allotted as per the seniority from the
available one.
(7) The allottee plot holders were asked to deposit their share
of Rs.105/- with Society to finalize their membership.
The meeting ended with vote of thanks & dinner.
Nagpur
18/12/88
Sd/-
Secretary”
22. Before we deal with the rival submissions, an important facet
of the matter whether it was the husband or the Disputant herself who
was the Depositor of the Society needs to be considered.  It is accepted
that the Disputant was an employee of Life Insurance Corporation of
India and the Society was meant principally for such employees. It was
however denied in the pleadings that she was a Depositor and it was
submitted that she had withdrawn the amount of Rs.3000/- which she
had earlier deposited and had thus lost the status of being a Depositor.
The then Secretary of the Society, when confronted with the documents
however had to accept that he had received a sum of Rs.4750/- from
the
Disputant. He also accepted that she had attended the meeting on
18.12.1988, had submitted an application form and deposited the requisite
fees. Though it was tried to project that it was her husband who was
the Depositor and the Disputant had attended the meeting as a
representative of the husband, in the face of the admitted position that
she had deposited Rs.4750/- and the findings rendered by the Courts
below, it has to be concluded that the Disputant was a Depositor of
the Society and like all other Depositors was entitled to and had attended
the meeting dated 18.12.1988 in her own right.
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It is significant to note that at no stage the husband of the
Disputant claimed that he was the Depositor in his own right and entitled
to allotment of any Plot.  Further, it is not the case of the Disputant
and her husband that over and above the entitlement of the Disputant,
her husband is also entitled to an additional Plot.  The submission has
always been that there was only one entitlement, in exercise of which
the option was given for Plot No.2.
23. If between the husband and wife, the claim has always been
only with respect to one entitlement, it really made no difference
whether the Disputant attended the relevant meeting in her own right
or as a representative of her husband.  The fact of the matter is, an
option was exercised in favour of Plot No.2 and the issue is whether
such option ought to have been allowed and accepted or not.  It may
be stated here that the communications addressed by the Society were,
normally in printed format where the name of the addressee would be
written after the printed prefixes “Mr./Mrs.” and many such
communications were addressed to “Mr./Mrs. Makhija”.  The record
also shows that some meetings were attended by the Disputant while
some were attended by her husband.  But, considering the facts that
the Disputant was an employee of Life Insurance Corporation of India
and had deposited Rs.4,750/- as stated above, her status was clearly
that of a Depositor.
24. It is a matter of record that the Depositors had
collectively
raised funds with the help of which, the consideration for purchase of
the land over which the layout was to be formed, could be arranged.
All the required and incidental expenses thus came from the funds raised
by the Depositors and to that extent the Disputant had definitely made
her contribution.  The money deposited by all the Depositors including
the Disputant had thus helped the Society to have the requisite land
whereafter the Plots could be carved and allotted to the concerned
members.  On the other hand, at no stage the Appellant had made any
such contribution.
25. It is accepted that the Appellant was neither present in the
meeting dated 18.12.1988 nor had he submitted any application along
with requisite fees. It is also accepted that he had not deposited anything
by way of deposit with the Society before or on 18.12.1988, with the
help of which the land could be purchased by the Society. It is true
that the tenor of the Resolution passed by the depositors on 24.06.1984
shows that no depositor was willing to take a bigger Plot but that
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AND ORS. [UDAY UMESH LALIT, J.]
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resolution was passed in the year 1984 and it was four years thereafter
that the day had arrived for exercise of choices or options.  For the
employees of Life Insurance Corporation it may be that the Depositors
at an earlier stage were not in a position to arrange requisite funds and
if the Society had to depend upon funding from an outsider, on the
strength of such resolution, the Society could have garnered the requisite
finances from an outsider.   But the facts on record disclose that no
such funding from any outsider was required to arrange the requisite
finance towards consideration for purchase of land.  If no outsider had
contributed in any manner there is no reason why a Plot could be
reserved for such an outsider disregarding the claim of a Depositor with
the help of whose money the Society had reached the stage where the
Plots could be allotted to the concerned.  In a situation where none of
the other Depositors had even made a claim with respect to Plot No.2
and if the Disputant had exercised such option, the Plot had to be allotted
to the Disputant.   No outsider could have had a better claim as against
any Depositor as regards to that Plot.
26. It is also a matter of record that as on 18.12.1988, the
Appellant had not even submitted his application form for membership
whereas all the Depositors including the Disputant had submitted such
forms along with requisite fees for membership.  Even on this
count,
the claim of the Disputant stands on a better footing as against the
Appellant.
27. Further, though the Resolution dated 18.12.1988 records, “As
Plot Nos. 1 and 2 were already allotted as nobody was interested in
them, the question of allotment of Plot No.2 does not arise”, it was
accepted by the then Secretary in his cross-examination that:-
a) the Appellant had not paid any amount towards the cost of
shares of the Society and admission fee towards
membership of the Society at any time before or on
18.12.1988.
b) the notice calling the meeting dated 18.12.1988 had not
mentioned that choice to be exercised by the Depositors
was restricted to plots other than Plot Nos. 1 and 2.
It was also accepted by the learned counsel for the Appellant
that neither any invitation was received by the Appellant to attend the
meeting nor did the Appellant attend the meeting and no payment was
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made by the Appellant before 18.12.1988.  No document has been
produced or relied upon to say that there was any allotment of Plot
Nos.1 and 2 in favour of anybody before the meeting was actually held
on 18.12.1988.
28. In the circumstances, it must be held that the assertion so
made in the Resolution was completely incorrect and against the record.
The then Secretary accepted in his deposition that he himself had allotted
these two plots but could not give the date when such allotment was
made.  In any case, it is accepted by the Appellant that no such
allotment was done at any time before 18.12.1988.
29. As on the date when the sale deed was executed on
25.10.1989 by the Society in favour of the Appellant,  there was an
interim order passed by the Cooperative Court at Nagpur on 25.04.1989
injuncting the Society from making any allotment of Plot No.2.  The
then Secretary accepted in his cross-examination that such allotment
and execution of sale deed was done in spite of the order of injunction.
For persons who had clearly violated the order of injunction, no
sympathetic consideration can be extended, nor any equity can be found
in favour of such persons.  It is also apparent that the execution of the
sale deed was even before the Resolution was passed in the meeting
held by the Society on 25.03.1990 regarding allotment of Plot No.2 in
favour of the Appellant.
30. In the circumstances, the conclusions drawn by the High
Court that the allotment of Plot
No.2 in favour of the Appellant was
illegal and that the Resolution passed by the Society in its meeting dated
25.03.1990 and the sale deed executed by the Society on 25.04.1989
were required to be quashed, are absolutely correct and fully justified.
31. As regards other conclusions drawn by the High Court, we
need not say anything as the Petition for Special Leave to Appeal filed
by the Disputant was disposed of by this Court on 15.01.2016 with the
observations as quoted hereinabove.
32. We, however, do conclude that the Disputant was a Depositor
of the Society; that she was entitled to attend the meeting dated
18.12.1988 in her own right; that she had preferred requisite application
for membership and had paid requisite fees on 18.12.1988 itself; that
she had opted for Plot No.2 and as on that date there was nobody else
apart from the Disputant who opted for said Plot No.2.
SHIVKISHAN v. SUJATA TARACHAND MAKHIJA
AND ORS. [UDAY UMESH LALIT, J.]
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33. These aspects of the matter shall be taken into account by
the concerned authorities while acting in terms of direction (v) issued
by the High Court which are quoted by us in para 15 hereinabove and
the allotment shall be restricted to those who had exercised their option
as on 18.12.1988 and were not otherwise allotted any plot and had not
accepted such allotment.
34. With the aforesaid directions the appeals stand dismissed.  No
order as to costs.
Divya Pandey
Appeal dismissed.