Dismissed

M/S. Unitech Fianance and Investment Pvt. Ltd. v. Bharati Mayur Parikh and 3 Ors.

Bombay HC13 Jun 2014NMS/528/2013

Case brief

AI extract

What is this about?

Court dismissed a motion to reject a plaint on grounds of non-compliance with mandatory pre-suit notice under Section 164 of the Maharashtra Co-operative Societies Act. The court held that the defendant-bank waived this procedural requirement by participating in the suit without raising an objection for over two years.

What did the court decide?

Notice of motion under Order VII Rule 11 of CPC to reject plaint is dismissed; no order as to costs; prayer for directions to file substantive suit is also rejected.

M/S. Unitech Fianance and Investment Pvt. Ltd. Vs… — Company and Corporate | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ASNORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.528 OF 2013 IN

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SUIT NO.1178 OF 2012

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M/s. Unitech Finance & Investment Pvt. Ltd. ..Plaintiff. vs.

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Bharati M. Parikh and ors.

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..Defendants.

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Ms. Sneha Phene i/by M/s. Shantilal & Co. for the Plaintiff. Mr. S.G. Walam for Defendant No.1. Ms.R. Peerbhoy for Applicant/Defendant Nos.3 and 4.

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CORAM : M. S. SANKLECHA, J. DATE : 13 JUNE 2014

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PC:

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This notice of motion has been taken out by defendant No.3 i.e. City Co-operative Bank Limited (Bank) and defendant No.4 Special Recovery Officer. In this motion the applicant-Bank seek rejection of the plaint under Order-7 Rule 11(d) of the C.P.C. The aforesaid relief is sought on the ground that mandatory notice required to be given under Section 164 of the Maharashtra Co-operative Societies Act, 1960 (”the Act”)has not been given to the bank. In view of the above, it is contended that the plaint as filed is barred by law.

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Learned Counsel for the applicants Bank points out that no notice as required under Section 164 of the Act was given to the applicant bank before filing the present suit. On this ground alone, it is her submission that the claim has to be rejected in terms of Order-7

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Rule11(d) of the C.P.C.

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In support reliance is placed upon the decision of this Court in Suprabhat Co-operative Housing Society Ltd. and another. vs. Span Builders and another 2000-04 Maharashtra Co-operative Cases 860 wherein learned Single Judge of this Court has held that when suit is filed against the Co-operative Society without giving statutory notice under Section 164 of the Act and therefore, plaint is liable to be rejected.

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As against the above, Ms. Phene the learned Counsel appearing for the plaintiff while accepting the fact that no notice under Section 164 of the Act was given submits that there is a gross delay in moving this application. Besides in any case she submits that the applicant-bank by its conduct has waived the requirement of notice under Section 164 of the Act. In support she states that the present suit was filed on 7 December 2011 and ad interim relief was sought on 13 December 2011 to restrain the applicant- Bank from auctioning the suit property. At that time, the applicant-Bank was duly represented and the applicant Bank agreed to the orders of the Court without raising any objection with regard to filing of the suit without the statutory notice under Section 164 of the Act. In terms of the interim order dated 13 December 2011 the applicant-Bank agreed to give the plaintiff notice of any application made in execution proceedings and also deposit the sale proceeds of the suit property in Court. Thereafter the applicant Bank gave notices dated 4 January 2012, 20 January 2012, 25 April 2012, 18 June 2012, 16 August 2012 of the notices and Advertisement

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for sale issued in respect of the suit property. In support of her submission that the applicant has waived its right to a notice under Section 164 of the Act, reliance is placed upon a decision of this Court in Jijamata Sahakari Sakhar Karkhana vs. Sukhdevo Ramahu Fulzade 2010 Mh.L.J. (5) 431.

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I have considered the submissions. A notice under Section 164 of the Act is mandatory before any proceedings by way of suit can be initiated against the applicant Bank. This has been so held by this Court in Suprabhat Co-op. Housing Society Limited (Supra). In this case the admitted position is that no notices under Section 164 of the Act was given to the applicant-Bank. However, such a notice, which is for the protection of a Co-operative Society can always be waived by the society i.e. applicant Bank. In fact, it has so been held by this Court in Jijamata Sahakari Sakhar Karkhana Limited (supra) in the following terms:-

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“ Pre-suit statutory notice is mandatory but it is capable of being lawfully waived by the partydefendant as it is procedural requirement but undoubtedly, the waiver has to be established by the plaintiff and once the plea of waiver raised by the plaintiff is tried and proved, then upon such waiver the civil court gets jurisdiction to entertain and try the suit. A party defending such suit which is instituted without service of pre-suit statutory notice has right to object at earliest opportunity that the suit could not have been instituted without the mandatory compliance of statutory requirements. On this premise, it is choice of the defendant to raise preliminary objection as to jurisdiction of the court to entertain the suit or to waive the objection of

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procedural requirement by continuing to participate in the suit by filing written statement, adjournment application etc. and otherwise participating in the further continuation of proceedings in the suit. If the defendant continue to participate in suit without enforcing his right to object to the institution of the civil suit filed without compliance of requirement of the pre-suit statutory notice, the defendant's conduct of continuance with the suit and participation therein may be established as deemed waiver of procedural requirement of the pre-suit statutory notice and, on that basis, when the waiver is proved by the plaintiff, the trial Court may proceed to decide the suit on merits...... Even in case jurisdiction is barred by any statutory provision court of plenary jurisdiction has power to decide its own jurisdiction by recording a finding as to jurisdictional fact”.

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In the present facts, the applicant Bank has participated in the present suit from December 2011 onwards. In fact the applicant Bank participated in the suit proceedings without insisting on the mandatory notice under Section 164 of the Act. It was only on 8 March 2013 that this motion was taken out for rejection of the plaint. This delay in taking out the motion may not by itself be fatal to the applicant Bank's case. However, where the delay is in the context of having contested the proceedings in Court on merits and at no time since December 2011 any objection with regard to non giving of notice under Section 164 of the Act was raised it would amount to waiver. Thus, there is a waiver of the requirement of notice under Section 164 of the Act by the applicant Bank.

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In view of the above, the present notice of motion is dismissed. No order as to costs.

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At this stage learned Counsel appearing for the applicant bank seeks directions from this Court that the applicant bank be given time to file a substantive suit against the plaintiff and defendant Nos. 1 and 2 in respect of mortgaged debt claimed by the plaintiff on the suit property. It is submitted that the suit property is already attached by applicant Bank as far as back in April 2011.

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I see no reason to give any such directions. It is open to the applicant Bank to take such action as is available to it under the law to recover its dues from defendant No.1. Accordingly, the above prayer is also rejected.

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(M.S. SANKLECHA, J.)

M/S. Unitech Fianance and Investment Pvt. Ltd. v. Bharati Mayur Parikh and 3 Ors.

Case brief

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M/S. Unitech Fianance and Investment Pvt. Ltd. v. Bharati Mayur Parikh and 3 Ors.

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