Dismissed

Vasant Jobanputra v. the Bank of India Staff,Sampadaco.Op.Hsg.So.LTDandOR

Bombay HC3 Sept 2004WP/1767/1989

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging a recovery certificate issued under section 101 of the Maharashtra Co-operative Societies Act. The court held that pendency of a dispute under section 91 does not bar recovery proceedings as the reliefs sought differ, and the Registrar need not judge the justness of dues founded on unchallenged resolutions.

What did the court decide?

The writ petition was dismissed with costs, and the rule was discharged.

Vasant Jobanputra Vs the Bank of India… — Property and Title | Bombay HC (2004)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 1767 OF 1989

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 Vasant Jobanputra ... Petitioner

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 versus

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 1. Bank of India Staff
 Sampada Co-operative
 Housing Society Limited;

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 2. M.B. Tribhuvan, Deputy
 Registrar, Co-operative

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 Societies, Bombay;

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 3. State of Maharashtra;

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 4. Bharati Vasani;
 5. Shalaka Co-operative

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 Housing Society Limited. ... Respondents

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 Mr. R.V. Govilkar, for the Petitioner.

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 Mr. Prakash Shinde holding for Mr. Gabriel

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 Pillai, for Respondent No. 1 and 5.

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 Mr. K.G. Waingankar, for Respondent No. 4.

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 CORAM : A.M.KHANWILKAR,J.

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 3rd September 2004

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 ORAL JUDGMENT :

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 1. This writ petition takes exception to the
 recovery certificate issued by the Deputy
 Registrar, Co-operative Societies, against the
 Petitioner at the instance of the Respondent
 Society dated March 18, 1989. The Respondent
 Society had applied to the Deputy Registrar for
 issuance of recovery certificate on the assertion
 that the Petitioner was in arrears of certain
 demands and outgoings of the Respondent Society
 towards the maintenance and service charges,
 non-occupational charges and balance cost of
 construction along with interest accrued thereon.
 The said proceedings were resisted by the
 Petitioner by contesting the demand as made being
 inflated and not realistic. The Deputy
 Registrar, on analysing the materials on record,
 has accepted the claim of the Respondent Society
 that the Petitioner was liable to pay amount
 towards maintenance and service charges from
 September 1983 to June 1987 of Rs.14,348.00 and
 interest accrued thereon of Rs.1366.53 at the

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 rate of 6 per cent. per annum upto June 1987 and
 further amount towards non-occupational charges

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 from September 1983 to June 1987 being

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 Rs.36,202.00 and interest accrued thereon from
 October 1983 to June 1987 being Rs.4,036.50. In
 addition, the Petitioner was held liable to pay
 to the Society amount towards balance cost of
 construction being Rs.54,797.00 and interest
 accrued thereon at the rate of 15 per cent. per
 annum from October 1983 to June 1987 being
 Rs.30,823.31. The total amount for which

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 recovery certificate under section 101 of the
 Maharashtra Co-operative Societies Act has been
 issued against the Petitioner on 18th March 1989
 is for Rs.1,41,573.34 Ps. The Petitioner could
 have challenged this recovery certificate by way
 of revision application under section 154 of the
 Act, but, instead, chose to file the present writ
 petition. Be that as it may, in the present writ
 petition, grievance made on behalf of the
 Petitioner, as was canvassed by Mr. Govilkar
 across the Bar, is that the Respondent Society
 could not have taken recourse to recovery
 proceedings under section 101 of the Act in
 respect of the said amounts as, there was dispute

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 regarding the correctness of the claim. It was
 argued that on the same cause of action, the
 Respondent Society has already instituted dispute
 under section 91 of the Act, which was still
 pending for consideration. It was argued that
 the Respondent Society cannot take recourse to
 two different remedies for the same relief. On
 that basis, it was contended that the present
 proceedings will have to be thrown out, because
 the Respondent Society has already taken recourse
 to remedy of dispute under section 91 of the Act.
 This is the only grievance made across the Bar in
 the present writ petition.

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 2. It may, however, be placed on record that
 initially Mr. Govilkar for the Petitioner fairly
 conceded that insofar as relief (a) is concerned,
 the same need not be considered, as the challenge
 to the validity of section 101 of the Act has
 already been negated by this Court in the
 unreported decision in Writ Petition No. 3489 of
 2002 decided on June 11, 2003 in the case of M/s
 Annapurna Engineering Corporation v. State of
 Maharashtra and another. He, therefore, modified
 his arguments and restricted the same to the

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 extent already indicated above. However, relying
 on the observations in the same judgment in para
 9, Mr. Govilkar had contended that once the
 Respondent Society had invoked remedy under
 section 91 of the Act, it was not open to the
 Respondent Society to pursue remedy under section
 101 of the Act. It is this limited grievance
 that needs to be addressed to in the present writ
 petition.

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 3. Having considered the rival submissions

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 and after going through the pleadings and the
 record of the case with the assistance of the
 Counsel appearing for the parties, I have no
 hesitation in rejecting the argument canvassed on
 behalf of the Petitioner before this Court. The
 argument clearly overlooks that the relief
 claimed in the dispute filed under section 91 of
 the Act are entirely different. The same read
 thus :

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 "(a) The dispute be adjudicated in terms
 of Section 91 to Section 96 of the
 Maharashtra Co-operative Societies Act,
 1960.

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 b) The Opponents No. 2 and 3 by
 themselves, their family members, agents
 and servants be ordered to quit, vacate
 and handover peaceful possession of flat
 No.C/103 in Unit No. II of the Disputant
 No.1-A Society situated at Shalaka
 Co-op.Housing Society Ltd., C.T.S.
 No.689/689-1 to 17, at Teligali Cross
 Road, S.N.Marg, Andheri (East),
 Bombay-400 069.

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 c) The Opponent No. 1 by himself, his
 family members, his servants and agents
 be ordered to quit, vacate and handover
 peaceful possession of flat No.B/40 in
 Unit No. 1 of the buildings of the
 Disputants Society situated at Teligali
 Cross Road, S.N. Marg, Andheri(East),
 Bombay-400 069 to the Disputant No.1
 Society.

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 d) The Opponent No. 1 be further
 directed to personally use and occupy
 flat No. C-103 in the buildings of the

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 said Disputant No.1-A Society in
 accordance with its Bye-laws and
 Resolutions and decision of the General
 Body of the Disputant No.1 Society after
 surrendering flat No.B/40 in the building
 of Disputant No. 1 Society to Disputant
 and after he is admitted as a member of
 Disputant No. 1A Society.

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 e) That pending the hearing and final
 disposal of the dispute, the Opponents by
 themselves, their agents and servants be
 restrained by an injunction and order of
 this Hon’ble Court from parting with
 possession of flat No. B/40 in Unit No.
 1 of Disputant No. 1 and flat No. C/103
 in Unit No. II of the Disputant Society
 No. 1A and/or creating any 3rd party
 rights in respect thereof in any manner
 whatsoever.

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 f) Ad-interim injunction in terms of
 prayer (e) hereinabove.

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 g) Cost of these proceedings be ordered

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 to be paid by the Opponents; and

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 h) Such other and further reliefs be
 granted as may appear just and proper in
 the nature and circumstances of the
 case."

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 4. No relief has been claimed even remotely,
 for recovery of the outstanding dues payable by
 the Petitioner to the Respondent Society. On the
 other hand, in the present proceedings under
 section 101 of the Act, that is the only relief
 claimed and has been granted by the authority
 below on the basis of the evidence adduced before
 it on record. To get over this position, Mr.
 Govilkar contends that although the relief
 claimed in the dispute is one of directing the
 Petitioner to hand over vacant and peaceful
 possession of the disputed property, but the same
 is founded on the allegation that the Petitioner
 is defaulter in relation to the cost of
 construction. There is no substance in this
 submission. Inasmuch as, that is the ground on
 which the Respondent Society has initiated action
 for recovery of possession of the disputed

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 premises from the Petitioner. Indeed, in the
 said dispute, the Petitioner in his written
 statement has questioned the correctness or
 justness of the claim set up by the Respondent
 Society regarding the balance cost of
 construction. On that basis, I am told that
 issue has also been framed as to whether the
 demand of the Society under that head is
 appropriate. I am also told that parties have
 adduced evidence with regard to that issue in the
 said dispute. (Those proceedings have not been
 produced before me). Even so, the fact remains
 that the reliefs claimed in the dispute are
 entirely different. If the Society fails to
 establish the appropriateness of the claim set up
 by it against the Petitioner, in that case, the
 Respondent Society may fail to get the relief
 claimed in the dispute, but that does not mean
 that the Respondent Society is claiming for the

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 same relief, which has been claimed in the
 recovery proceedings under section 101 of the
 Act, which is the subject matter in the present
 writ petition. Viewed in this perspective, it is
 not possible to accept the grievance of the
 Petitioner. Inasmuch as merely because the

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 Respondent Society has instituted dispute under
 section 91 of the Act, which incidentally refers
 to the item of balance cost of construction,
 which also finds place in the recovery
 certificate issued by the Deputy Registrar at the
 instance of the Respondent Society, that by
 itself, cannot be the basis to hold that remedy
 under section 101 of the Act was unavailable to
 the Respondent Society or that the Deputy
 Registrar had no jurisdiction to entertain and
 finally decide the same, as sought to be
 contended before this Court. This view is
 reinforced also by the non-obstante clause in
 Section 101 of the Act. For, remedy under
 Section 101 of the Act is notwithstanding

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 anything contained, inter alia, in Section 91 of
 the Act. In the light of the above, the
 observations of our High Court in Annapurna’s
 case (supra) pressed into service by the
 Petitioner are of no avail in the fact situation
 of the present case. Accordingly, submission
 canvassed on behalf of the Petitioner will have
 to be stated to be rejected.

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 5. It is necessary to place on record that

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 during the course of arguments, Mr. Govilkar has
 plainly conceded on instructions of the
 Petitioner that insofar as item Nos. 1 and 2 of
 the recovery certificate regarding maintenance
 and service charges and interest accrued thereon
 are concerned, the correctness of that is not
 questioned by the Petitioner. The only grievance
 was with regard to the correctness of the claim
 of the Respondent Society under the head of
 non-occupational charges being item No. 3 and
 interest accrued thereon, being item No. 4; and
 in respect of the amount specified as balance
 cost of construction being item No. 5, and
 interest accrued thereon, being item No. 6. Mr.
 Govilkar, however, was not in a position to
 demonstrate as to how the claim of the Respondent
 Society towards non-occupational charges being
 sum of Rs.36,202/- was inappropriate. On the
 other hand, the Respondent Society has placed
 reliance on the resolution passed by the Society
 that the concerned member will be obliged to pay
 non-occupational charges to the society. The
 amount has been specified in the said resolution.
 The said resolution has not been challenged, but
 the amount specified in that resolution is tried

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 to be questioned as unjust at the instance of the
 Petitioner in the present proceedings. That
 course is not open, so long as the resolution
 operates and remains in the field. The said
 resolution was applicable to all the members of
 society uniformly. It is not the case of the
 Petitioner that the Petitioner has taken steps to
 challenge the said resolution. The said
 resolution was placed before the Deputy Registrar
 and it is on that basis, the Deputy Registrar
 found that the claim set up under the head of
 non-occupational charges was duly supported by
 the relevant documents, namely, resolution passed
 by the Society and the demand raised by the
 Society qua the Petitioner in that behalf coupled
 with the fact that the Petitioner failed to pay
 the said amount. So understood, the Deputy
 Registrar being the recovery officer had no
 option but to issue certificate under section 101
 of the Act.

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 6. Insofar as the claim of the Respondent
 Society regarding balance cost of construction is
 concerned, even that is supported by the
 resolution of the Respondent Society, which is

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 uniformly applicable to all the members, followed
 by demand made by the society and not fulfilled
 by the Petitioner. The said documents were
 placed before the Deputy Registrar and the Deputy
 Registrar has accepted the claim of the
 Respondent Society being substantiated by the
 relevant resolution and the demands raised by the
 Society, which remained unfulfilled. It is not
 open to the Deputy Registrar, who is obliged to
 issue recovery certificate, to go into the
 justness or appropriateness of the claim made by
 the Respondent Society, which is founded on
 resolution of the society authorising such
 demand. That officer cannot proceed to hold that
 the demand made by the Society, is inappropriate,
 inspite of the demand being supported by the
 resolutions, which are binding on the members of
 the society - having remained unchallenged.
 Whereas the recovery certificate is required to
 be issued on the basis of the resolution passed
 by the Society either by the managing committee
 or by the general body followed by the demand
 made by the Society on the basis of such
 resolution and the fact that the demand remaining
 unfulfilled. No other aspect can be gone into by

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 the officer who is only called upon to issue
 recovery certificate. This position is
 reinforced by the language of section 101(1) of
 the Act, which provides that on the society
 concerned furnishing a statement of accounts in
 respect of the arrears, the Registrar may after
 making such enquiry as he deems fit grant
 certificate for the recovery of amount stated
 therein to be due as arrears. Mr. Govilkar,
 however, contends that in view of the expansive
 language in section 101 of the Act, that "the
 Registrar has to make such enquiries", would
 authorise the Registrar to examine whether the
 claim of the Society is just and legal, supported
 by resolutions though. It is not possible to
 accept this submission. So long as the
 resolution passed by the managing committee, or,
 for that matter, general body, operates, the
 member will be bound by the said resolution,
 until that resolution is set aside by the
 appropriate forum. In the present case, the
 demand is founded on resolutions passed by the
 Society (which have remained unchallenged)
 followed by demand made by the Society and the
 demand remaining unfulfilled. The amount

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 demanded by the Respondent Society is also
 indicated in the statement of accounts of the

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 Society and it is on that basis the recovery
 certificate has been issued by the Registrar. A
 priori, no fault can be found with the
 certificate as issued by the Registrar, which is
 supported by the documents on record. Indeed,
 the proceedings under section 101 of the Act
 before the Registrar are quasi judicial in
 nature, but that does not mean that the Registrar
 is expected to engage in the process of long
 drawn reasoning or analysis of each aspect or
 argument. It is enough if that authority broadly
 considers the main issue as to whether the
 concerned member is in arrears and to what extent
 and whether the claim of arrears of the society
 is substantiated from the contemporaneous record.

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 That has been done in the present case. Viewed
 in this perspective, there is no substance in
 this petition, and the grievance as made before
 this Court, as is mentioned earlier, being
 untenable, the petition ought to fail and the
 same is, therefore, dismissed with costs. Rule
 discharged on the above terms.

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 . Certified copy expedited.

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 (A.M.KHANWILKAR,J.)

Vasant Jobanputra v. the Bank of India Staff,Sampadaco.Op.Hsg.So.LTDandOR

Case brief

What is this about?

What did the court decide?

Vasant Jobanputra v. the Bank of India Staff,Sampadaco.Op.Hsg.So.LTDandOR

Case brief

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