Disposed

Gaurang Dwivedi S/O Jayashankar v. Geratur Bhagyalaxmi Co-Operative Soc Limited Part 8

Gujarat HC26 Jul 2022SCA/10791/2018

Case brief

AI extract

What is this about?

In this special civil application, the High Court of Gujarat disposed of a writ petition challenging orders passed in a cooperative society dispute. The Court observed that lower authorities had reconsidered documents and passed reasoned orders, finding no jurisdictional error and no need for High Court interference under Article 226.

What did the court decide?

No interference under Article 226; petition disposed of with direction to petitioner to deposit remaining maintenance amount within eight weeks.

Gaurang Dwivedi S/O Jayashankar Vs Geratur Bhagyalaxmi… — Cooperative Societies | Gujarat HC (2022)

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 10791 of 2018

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=====================================================
GAURANG DWIVEDI S/O JAYASHANKAR

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Versus

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GERATUR BHAGYALAXMI CO-OPERATIVE SOC LIMITED PART 8

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=====================================================

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Appearance:

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HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MS.FALGUNI D.TRIVEDI(3912) for the Petitioner(s) No.
1

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DHIRAJLAL A THAKKER(8784) for the Respondent(s) No. 1
MR HIMANSHU SUTHAR(8098) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3

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=====================================================

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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 26/07/2022

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ORAL ORDER

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1. By way of present petition the petitioner has

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prayed for the following reliefs :-

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"(A) This Hon'ble Court may be pleased to
admit the present Application.

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(B) This Hon'ble Court may be pleased to
call for record and proceedings.

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(C) This Hon'ble Court may be pleased to
allow the Application by quashing and
setting aside the Judgment and Order on
Learned Gujarat Co-operative Tribunal on
dated 12/3/2018 in Appeal No 25/2017 in
which confirmed the order passed by the
Learned Board of Nominees Ahmedabad on
dated 12/4/2016 in Suit No 524/2009

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(D) This Hon'ble Court may be pleased to
pass such other and further relief as may
be deemed fit just and proper in the facts
and circumstances of the case in the
interest of justice."

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Page 1 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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2. It appears that the respondent Society which
is registered by registration No.G-17968 dated
09.10.1997 by the name of Sachin Tower has 40
flats in one block and total 320 flats in the
society. The petitioner herein appears to be
residing in block 'C' in Flat No.83. It appears
that the respondent No.1 preferred Lavad Suit
No.524 of 2009 under Section 96 and 99(4) of Co-

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operative Society Act against the petitioner for
recovery of Maintenance for Rs.32,500/- for a
period from June-2005 to June-2009. The Board of
Nominees by order dated 12.04.2016, directed the
petitioner to pay an amount of Rs.24,750/-
within a period of 20 days to the Society and on
non payment of the said amount, the respondent
society was directed to claim interest at the
rate of 12% from June-2005 and also Rs.1100/- as
Cost. The said order dated 12.04.2016 passed in
Suit No.524 of 2009, the operative paragraphs of
the order reads thus:-

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O R D E R

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"The suit of the Plaintiff is partly
allowed.

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It is hereby ordered that the Opponent

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Page 2 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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of this case shall pay the total amount of
Rs. 24,750/- to the Plaintiff Society, on
counting as monthly Rs. 500/ from June 2005
to June 2009; total due amount of Rs.
24,000/ and + Rs. 750/- as Notice expense.

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The amount shall be paid within-20 days
from the date of this Order. In default to
it, the Plaintiff Society will be eligible
to receive the amount with the interest @
12% from June 2005 as well as (+) Rs.
1,100/- as the Plaint expense to be
recovered from the Opponent. The Plaintiff
could recover the same from personal as
well as from any type of property of the
Opponent.

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Amount deposited by the Opponent on
behalf of due amount after filing the suit
shall be given as set-off.

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It is Ordered to deposit the amount of
Rs. 1,100/- in the Government (Account) as
Arbitration Fees.

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Decree to be drawn accordingly and the
parties to be informed.

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Order pronounce in open Court."

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3. Being aggrieved by the aforesaid order passed

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in Suit No.524 of 2009 dated 12.04.2016, the

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petitioner had approached the Gujarat Co-
operative Society Tribunal. Being aggrieved by
the aforesaid order the petitioner preferred an
appeal being Appeal No.25 of2017. The Tribunal
by the impugned order dated 12.03.2018 dismissed

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the said appeal filed by the applicant thereby
confirming the order passed by the Board of
Nominees. The operative paragraphs of the said
order passed by the Tribunal in Appeal No.25 of

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Page 3 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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2017, order dated 12.03.2018 read thus (Page-
13, Para-8):-

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"8.Considering the records of Appeal
Application and the Arbitration case, the
Respondent Society is the Housing Society
running on co-operative basis. All the
committee members shall have to follow the
sub-rules as well as terms – conditions of
the Housing Society. The office-barriers of
the Housing Society provides necessary
facilities like lift, water, security,
electricity, parking, cleaning, drainage
system to the committee members and on
behalf of these facilities, they collect
the money from the committee members. The
amount of maintenance is also increased
time to time due to increase in the
maintenance expense and all such decisions
regarding the same are been approved in the
General Meeting of the Society. The
Appellants are bound to pay the
administrative contribution for maintenance
accordingly. The matter that they
(Appellants) are not responsible to pay the
dues (debts) of the Society as well as the
Appellants have failed to prove the
disputes of the Appeal Application with the
evidence. Hence, the decision of this issue
comes to be “negative”."

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4. Being aggrieved by the impugned order passed

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by the Tribunal dated 12.03.2018, the petitioner

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was constrained to approach this Court by filing
the present petition invoking Article 226 of the

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Constitution of India. By order dated
22.01.2019, the Division Bench in Letters
Patent Appeal No.169 of 2019 remanded the matter

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Page 4 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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i.e. order dated 13.07.2018 passed in Special
Civil Application No.10791 of 2018. The
petitioner herein challenged the said order by
preferring Letters Patent Appeal being Letters

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Patent Appeal No.169 of 2019. The present
petition has been adjourned from time to time.

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5. The order dated 28.08.2019 reads thus :-

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"Mr. Falguni Patel, learned advocate for
the petitioner seeks time to take
instructions with regard to deposit of the
maintenance amount, which, according to the
petitioner, is payable to the respondent-
Society.

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S.O. to 18.09.2019."

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6. The order dated 18.09.2019 reads thus :-

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"Heard Ms. Falguni Trivedi, learned
advocate for the petitioner.

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Learned advocate for the petitioner
submitted that the petitioner is ready to
deposit outstanding amount, if the
respondent-Society passes resolution for
full and final settlement.

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ISSUE NOTICE returnable on 10th October,
2019."

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7. Heard Ms. Falguni Trivedi, the learned

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advocate appearing for the petitioner and Mr.
Himanshu Suthar, the learned advocate appearing
for the respondent No.1.

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Page 5 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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8. Ms. Falguni Trivedi, the learned advocate
appearing for the petitioner submitted while
passing the impugned order the learned Tribunal
has not considered that the notification of
increasing the maintenance is given by Mr. Biren
Shah, who is not a member of the society and not
holding any post in the committee of the
society, so he has no right to give notice for
collection of maintenance as a authorised member
of the society and submitted that the learned

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tribunal failed to consider the communication

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dated 29.09.2005 and 05.06.2005 by the
petitioner to the Secretary, bringing it to the
notice of the Secretary that the circular for
increasing the maintenance was illegal but the
petitioner has not received any reply from the
society. The another communication dated
16.11.2006 was preferred to the Registrar of the
society and a cheque of Rs.5200/- dated
30.07.2007 was deposited in reference to the
letter dated 28.04.2007. Further, number of

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disputed questions of facts are raised by the
petitioner in the petition.

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Page 6 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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9. Both the authorities have concurrently held
against the petitioner and held that the
respondent authority is entitled to recover an
amount of Rs.24,750/- for a period of June-2005
to June-2009 at the rate of Rs.500/- towards
maintenance per month and Rs. 750/- towards
Notice expenses. If the said amount is not paid,
the respondent society is entitled to claim the
same amount with 12% interest from June-2005 to
June-2009 and Rs.1100/- as a suit Cost paid
within a period of 20 days. It appears that the
petitioner in the meantime has deposited
Rs.8125/- on 14.04.2012 in the name of Geratpur
Bhagyalaxmi Co.Op. Hou. Soc. Ltd. Part-8 vide

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receipt No.5731. Ms. Trivedi, the learned
advocate has produced on record a copy of the
receipt No.5731 in the name of the petitioner,
considering that Rs.8125/- was deposited by the
petitioner, the petitioner is directed to
deposit the remaining principal amount towards
the maintenance within a period of eight weeks
from the receipt of this order.

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Page 7 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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10. Ms. Falguni Trivedi, the learned advocate
submitted that the petitioner is not in a
position to comply with the impugned orders
passed by the Court, in view of the illness of
petitioner's husband. It is open for the
petitioner to approach the respondent society
with appropriate application with regard to

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waiver of the interest accrued on the amount
payable in accordance with order passed by the
Lavad Court in Lavad Suit No.524 of 2009 dated
12.04.2016. If such an application is preferred
by the petitioner, the respondent society shall
consider the same, taking into the
consideration, the health of the petitioner's
husband as stated by Ms. Trivedi, the learned
advocate appearing for the petitioner.

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12. POSITION OF LAW :-

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At this stage, it is apposite to refer to
the ratio as laid down by the Hon'ble Supreme
Court in the case of Shalini Shyam Shetty and
Ors. Vs. Rajendra Shankar Patil, reported in
(2010) 8 SCC 329, wherein paragraphs 79 to 82
reads thus :-

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Page 8 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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"79. We would like to make it clear that
in view of the law referred to above in
cases of property rights and in disputes
between private individuals writ court
should not interfere unless there is any
infraction of statute or it can be shown,
that a private individual is acting in
collusion with a statutory authority.

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80. We may also observe that in some High
Courts there is tendency of entertaining
petitions under Article 227 of the
Constitution by terming them as writ
petitions. This is sought to be justified
on an erroneous appreciation of the ratio
in Surya Dev (supra) and in view of the
recent amendment to Section 115 of the
Civil Procedure Code by Civil Procedure
Code (Amendment) Act, 1999. It is urged
that as a result of the amendment, scope
of Section 115 of CPC has been curtailed.
In our view, even if the scope of Section
115 CPC is curtailed that has not resulted
in expanding High Court's power of
superintendence. It is too well known to
be reiterated that in exercising its
jurisdiction, High Court must follow the
regime of law.

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81. As a result of frequent interference
by Hon'ble High Court either under Article
226 or 227 of the Constitution with
pending civil and at times criminal cases,
the disposal of cases by the civil and
criminal courts gets further impeded and
thus causing serious problems in the
administration of justice.

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82. This Court hopes and trusts that in
exercising its power either under Article
226 or 227, Hon'ble High Court will follow
the time honoured principles discussed
above. Those principles have been
formulated by this Court for ends of

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Page 9 of 10

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C/SCA/10791/2018 ORDER DATED: 26/07/2022

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justice and the High Courts as the highest
Courts of justice within their
jurisdiction will adhere to them
strictly."

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13. In view of concurrent findings of the facts
by both the authorities and further having gone
through the documents produced on record, it
appears that both the authorities below have
considered the documents which were produced and
have passed reasoned order giving appropriate
reasons.

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14.No interference is called for under Article
226 of the Constitution of India. No error of
jurisdiction could be said to have been
committed by the authorities by passing order in
Lavad Suit No.524 of 2009 dated 12.04.2016 and
the tribunal in Appeal No.25 of 2017 dated
12.03.2018.

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15. With the aforesaid directions as stated
above, the present writ petition stands disposed
of.

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(VAIBHAVI D. NANAVATI,J)

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Pallavi

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Page 10 of 10

Gaurang Dwivedi S/O Jayashankar v. Geratur Bhagyalaxmi Co-Operative Soc Limited Part 8

Case brief

What is this about?

What did the court decide?

Gaurang Dwivedi S/O Jayashankar v. Geratur Bhagyalaxmi Co-Operative Soc Limited Part 8

Case brief

What is this about?

What did the court decide?

What the court decided

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