Partly allowed

The Citizen House Mortgage and Housing Co. Operative Society Limited v. J Lokanath Gowda

Karnataka HC10 Feb 2023CRP/406/2021

Case brief

AI extract

What is this about?

The High Court of Karnataka held that filing a suit against a co-operative society without issuing a mandatory notice under Section 125 of the Karnataka Cooperative Societies Act, 1959 renders the suit non-maintainable. Consequently, the Trial Court order rejecting the application to dismiss the plaint was set aside.

What did the court decide?

The impugned order dated 09.06.2021 is set aside, the application to reject the plaint under Order 7 Rule 11 is allowed, and the plaint stands rejected.

The Citizen House Mortgage and Housing Co. Operative… — Property and Title | Karnataka HC (2023)

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CRP No. 406 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR CIVIL REVISION PETITION NO. 406 OF 2021 (GM-CPC)

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BETWEEN:

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THE CITIZEN HOUSE MORTGAGE AND HOUSING CO OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 024, BY ITS PRESIDENT.

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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THE SECRETARY, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO-OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 024.

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N.SHIVAKUMAR, S/O LATE NANJAIAH, PRESIDENT, AGED ABOUT 58 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 024. (EARLIER VICE-PRESIDENT)

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CRP No. 406 of 2021

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M.K.MOHAN RAM, S/O M.N.KRISHNAMURTHY, DIRECTOR, AGED ABOUT 69 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO-OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 024.

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DR.V.SEETHARAMAN, S/O LATE VAIDYANATHAN, EX-DIRECTOR, AGED ABOUT 75 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 024.

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MARAPPA, S/O LATE KEMPAIAH, DIRECTOR, AGED ABOUT 80 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO-OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 001. (WRONGLY TYPED IN THE PLAINT AS MADAPPA)

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C.R.SHESHAGIRI RAO, S/O RAMA RAO CHINNE, DIRECTOR, AGED ABOUT 48 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO-OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA,

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CRP No. 406 of 2021

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MYSURU-570001 (NOW VICE -PRESIDENT)

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SMT. S.SUNDARI, W/O LATE N. SUBRAMANYAM, EX-DIRECTOR, AGED ABOUT 80 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO-OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 001. (WRONGLY TYPED IN THE PLAINT AS SUNDARI)

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R. JAGADISH KUMAR, S/O LATE S.S.RAJU CHATTIYAR, DIRECTOR, AGED ABOUT 59 YEARS, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 001.

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SMT. VEENA M.R., W/O C.M.S. PRABHU, AGED 49 YEARS, DIRECTOR, THE CITIZEN HOUSE MORTGAGE AND HOUSING CO-OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 001. (WRONGLY TYPED IN PLAINT AS VEENA M L)

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SMT. SHASHIKALA, W/O N. SHIVAKUMAR, DIRECTOR, AGED ABOUT 45 YEARS,

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CRP No. 406 of 2021

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THE CITIZEN HOUSE MORTGAGE AND HOUSING CO OPERATIVE SOCIETY LIMITED, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSURU - 570 001.

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(SINCE DEFENDANT NO.4 H.PANDURANGAPPA AND DEFENDANT NO.8 MANJU PRASAD DIED IN SEPTEMBER 2020 RESPECTIVELY, THE PETITIONERS NOT IMPLEADED THEM IN THE TOP NOTED CRP, AND NOT CLAIMING ANY RELIEF AGAINST THEM)

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…PETITIONERS

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(BY SRI. N.R.KRISHNAPPA., ADVOCATE)

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AND:

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J. LOKANATH GOWDA, S/O LATE JAVARAYYA, AGED ABOUT 58 YEARS, HOUSE NO.246, ITTIGEGOODU,

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NAJARABAAD MOHALLA, MYSURU CITY - 570 001.

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THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, CO-OPERATIVE DEPARTMENT, KADA OFFICE, NEW SAYYAJI ROAD, MYSURU - 570 001.

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THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MYSURU SUB-DIVISION, NEW PUBLIC OFFICES BUILDING, MYSURU - 570 001.

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CRP No. 406 of 2021

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THE COMMISSIONER, MYSURU URBAN DEVELOPMENT AUTHORITY, JLB ROAD, MYSURU - 570 005.

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THE MEMBER, TOWN PLANNING AUTHORITY, MYSURU URBAN DEVELOPMENT AUTHORITY, JLB ROAD, MYSURU - 570 005.

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THE TAHSILDAR, MYSURU TALUK, TALUK OFFICE BUILDING, NAJARABAD, MYSURU - 570 010.

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…RESPONDENTS

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(BY SRI. C.R.SUBRAMANYA, ADVOCATE FOR R1; SMT. JYOTHI BHAT, HCGP FOR R2, R3 AND R6; SMT. POONAM PATIL ADVOCATE FOR R4; R5 SERVED)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 09.06.2021 PASSED ON I.A.NO.3 IN O.S.NO.884/2018 ON THE FILE OF THE LEARNED VII ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MYSURU, DISMISSING THE I.A.NO.3 FILED UNDER ORDER 7 RULE 11(A) AND (D) OF CPC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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CRP No. 406 of 2021

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ORDER

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Respondent No.1 herein has filed a suit in O.S.No.884/2018 for declaration that the allotment of suit schedule property is null and void, alleging that the defendant/Co-operative Society had purchased the schedule property in the name of one of the Director.

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Defendant Nos.1 to 11 filed an application to

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reject the plaint under Order 7 Rule 11 (a) and (d) CPC, stating that the suit was instituted without issuing notice to the Assistant Registrar of the Co-operative Society as contemplated under Section 125 of the Karnataka Cooperative Societies Act, 1959 (for short 'the Act'). The trial Court rejected the application, stating that the averments made in the plaint is required to be considered, and not the written statement. Against which the present petition is filed.

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Learned counsel for the petitioners submits that,

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before instituting the suit against the Co-operative Society, issuance of notice under Section 125 of the Act to the Assistant Registrar concerned is mandatory and the suit filed

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CRP No. 406 of 2021

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without issuing the said notice is not maintainable. In support he places reliance on the decision of the Full Bench of this Court in the Case of KRISHI MATTU KSHEERA UTPADAKA VIVIDHODDESHA SAHAKARI SANGH NIYAMIT Vs. SOHAN LAL- ILR 1992 KAR 3587.

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Learned counsel for the respondent-Plaintiff submits that the notice has been issued to the Assistant Registrar concerned on 16.06.2016, and the same is produced along with the plaint. Hence, the suit was instituted after issuance of notice Under Section 125 of the Act and sought for dismissal of the petition.

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I have examined the submissions made by the learned counsels for the parties.

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A perusal of the trial Court records indicates that

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the notice dated 16.06.2016 is alleged to have been issued to the Assistant Registrar concerned. However, the plaintiff has not produced any acknowledgement for having served the notice to the Assistant Registrar concerned as contemplated under Section 125 of the Act.

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CRP No. 406 of 2021

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The Full Bench of this Court in the case of KRISHI

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MATTU KSHEERA UTPADAKA VIVIDHODDESHA SAHAKARI SANGH NIYAMIT (supra)has held that:

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"Notice under Section 125 of the Act is mandatory, where the Act in question is with reference to the society. Such notice is also necessary if the 'Act' in question is with reference to an officer of the society and the 'Act' or omission complained of relates to the constitution, management or business of the society."

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Hence, notice is mandatory as contemplated under Section 125 of the Act, before instituting the suit. Therefore, the plaintiff having not been issued notice under Section 125 of the Act could not have instituted the suit. Hence, the impugned order passed by the Trial Court is not sustainable in law. Accordingly, I pass the following

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ORDER

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