Dismissed

Desh Bhushan Co-Op. Hou. Ltd., and Anr. v. M/S. Sachinam Estate Developers Private Limited

Bombay HC11 Aug 2010CRA/441/2008

Case brief

AI extract

What is this about?

This court dismissed the civil revision as the suit challenging the authority of the defendant to represent the Society did not involve a question touching the business of the Society, and thus no notice under Section 164 was required.

What did the court decide?

The Notice of Motion was rejected; the Civil Revision Application was dismissed; Civil Application Nos. 150 and 185 were disposed of.

Desh Bhushan Co-Op. Hou. Ltd., and Anr. Vs M/S… — Company and Corporate | Bombay HC (2010)

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CRA 441-08

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.441 OF 2008
WITH
CIVIL APPLICATION NO.150 OF 2008
WITH
 CIVIL APPLICATION NO.185 OF 2008

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Deshbhushan Co-operative Housing.Applicants
Society Limited & anr.

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 V/s.

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M/s.Sachinam Estate Developers.Respondent
Private Limited

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Mr.P.DhakephalkarwithMr.R.D.Soniand
Mr.Vipin Kamdi i/b.M.A.Saiyed, Advocate, for
the Applicants
None for the Respondent

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P.C.

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.This Civil Revision Application is

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directed, against order dated 14th March, 2008

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passed by the learned Judge, City Civil Court,

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Greater Mumbai, rejecting the Defendant's

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Notice of Motion No.3872 of 2007 whereby the

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Defendant had sought that the Court should

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hold that the suit was not maintainable for

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2 CRA 441-08

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want of notice under Section 164 of the

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Maharashtra Cooperative Societies Act, 1960.

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2.I have heard the learned Counsel for

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the parties.

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3.This Revision is filed by one

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S.B.Nayak, claiming to be Secretary of
Applicant No.2 � Society, who was arrayed as
Defendant in the suit. The frame of the suit
shows that the Plaintiffs � Developers of the
property had alleged that Defendant No.1 �

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S.B.Nayak had no authority to deal with the

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affairs of the Society and therefore, could
not have issued notice dated 20th March, 2007
on behalf of the Society. The reliefs claimed
in the suit show that the Plaintiff had sought

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a declaration that notice issued by Defendant
No.1 � S.B.Nayak was illegal, bad-in-law and

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without any authority. An injunction was

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sought to restrain the Defendant No.1 from
obstructing or interfering with the work of

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CRA 441-08

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development.

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4.According to the learned Counsel for

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the Applicants, the learned Judge erred in
holding that for want of the memorandum and
bye laws of the Society, he was not in a
position to find out as to what was business
of the Society & whether the suit pertained to
a matter touching the business of the Society.

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He may be right in submitting that the learned
Judge need not have concluded that because by-
laws were not produced, Society could not be

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said to be involved in construction of houses

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or that such activity would not fall in the
business of the Society. Judgment of this
Court inSuprabhat Co-operative Housing

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Society Ltd. & another Versus Span Builders &

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another, reported in 2002(6)Bom.C.R.257 holds
that construction of house would be the main

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job of such a housing Society & would be an
act touching the business of the Society.

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5.The question here is not what was the

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business of the Society, but whether the

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dispute raised in the suit pertained to an
touching business of Society. The dispute

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raised in the suit was not about the
construction of houses, but about the
authority of Defendant No.1 to represent
Defendant No.2 � Society. In fact, on behalf
of the Society, Civil Application No.185 of

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2008 has been filed stating that the Society
had no such objection to raise and therefore,
the proposition is that if the revision has to

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continue it has to be continued at the
instance of only Defendant No.1 � S.B.Nayak.

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6.The learned Counsel for the Applicants
submits that whosoever represented the
Society, since a notice as required under
Section 164 of the Maharashtra Cooperative
Societies Act, 1960 has not been given the

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suit would not be tenable. He submitted that
giving notice subsequently would also not

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5 CRA 441-08

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cure the defect, nor would it permissible to

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the Society to condone this. Now this is
doubtful proposition. If notice is required

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to be given to enable the Society to take
remedial action and to avoid litigation & if
the Society itself does not object to the suit
being filed without prior notice such an
objection could not be raised, by any one
else.

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7.In any case, that is not a dispute

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which is raised in the suit. The dispute is

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whether Shri S.B.Nayak could represent the

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Society. The question of membership of

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S.B.Nayak and several others had been raised

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in a separate proceedings before the
authorities under the Maharashtra Cooperative

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Societies Act, 1960, right up to the Hon'ble
Minister. It has been held that S.B.Nayak and
others ceased to be members of the Society in

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view of the resolution dated 30th December,
2004 on having transferred their shares to

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CRA 441-08

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three new incoming members. This order of the
Hon'ble Minister had been questioned by a Writ
Petition before this Court which was decided
just before taking up this Civil Revision
Application for hearing, holding that the
District Deputy Registrar as well as Joint
Registrar and the Hon'ble Minister rightly
held that names of seven members including

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S.B.Nayak had to be removed. Therefore,

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S.B.Nayak would have no authority to represent

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the Society and therefore, declaration sought
by the Plaintiff, that Nayak had no authority
to represent the Society, would not be an act
in respect of which notice would be required
to be issued under Section 164 of the
Maharashtra Cooperative Societies Act, 1960
before filing a suit. Therefore, the learned

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Judge had rightly rejected Notice of Motion.
Reasons given by him in paragraph 24 to 26 of

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the Judgment of his order show that the

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controversy which the learned Judge had
considered was about the status of S.B.Nayak

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7 CRA 441-08

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claimed to be Secretary of the Society and he
had rightly concluded that suit was
maintenable.

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therefore, dismissed.

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9.In view of dismissal of Civil Revision
Application, Civil Application Nos.150 of 2008
and 185 of 2008 do not survive and the same
are disposed of.

Desh Bhushan Co-Op. Hou. Ltd., and Anr. v. M/S. Sachinam Estate Developers Private Limited

Case brief

What is this about?

What did the court decide?

Desh Bhushan Co-Op. Hou. Ltd., and Anr. v. M/S. Sachinam Estate Developers Private Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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