Allowed

B R Ravi Kumar v. the Air Craft Employees Housing

Karnataka HC16 Jul 2024WP/40894/2017

Case brief

AI extract

What is this about?

Plaintiff's suit for injunction and damages against a housing co-operative society was returned by the trial court for non-compliance with Section 125 notice. The High Court held the suit did not touch the society's constitution, management or business, set aside the order, and directed expeditious disposal.

What did the court decide?

Impugned order dated 12.08.2017 returning the plaint in O.S.No.1846/2016 set aside; trial court directed to dispose of the suit within one year; all IAs closed.

B R Ravi Kumar Vs the Air Craft Employees Housing — Cooperative Societies | Karnataka HC (2024)

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NC: 2024:KHC:27476 WP No. 40894 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO.40894 OF 2017 (GM-CPC)

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BETWEEN:

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B.R. RAVI KUMAR S/O SRI. B. RAMAKRISHNA REDDY AGED ABOUT 43 YEARS RESIDING AT NO.1 2^ND CROSS BALAPPA REDDY COMPLEX KODIHALLY ULSOOR POST BENGALURU-560 008.

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…PETITIONER

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(BY SRI. SRINIVASA MURTHY .S, ADVOCATE)

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AND:

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Digitally signed by MEGHA MOHAN Location: HIGH COURT OF KARNATAKA

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THE AIR CRAFT EMPLOYEES HOUSING CO-OPERATIVE SOCIETY LTD. NO.15, C.K.C.GARDEN OPP.BIO HOSPITAL K.H.ROAD BENGALURU-560 027. REPRESENTED BY ITS PRESIDENT SURESH GOWDA

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A. KRISHNAPPA S/O LATE AGADURAPPA AGED ABOUT 63 YEARS RESIDING AT SINGASANDRA VILLAGE BEGUR HOBLI

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BENGALURU SOUTH TALUK BANGALORE URBAN DISTRICT.

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…RESPONDENTS

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(BY SRI. SANDEEP LAHIRI, ADVOCATE FOR R1; V/O DATED 02.02.2023 PETITION AGAINST R2 IS ABATED)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN O.S.1846/2016 ON THE FILE OF THE XII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND SET ASIDE THE ORDER DATED 12.8.2017 AT ANNEX-R RETURNING THE PLAINT IN O.S.1846/2016 ON THE FILE OF THE XII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order dated 12.08.2017 passed on

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I.A.No.3 in O.S.No.1846/2016, the petitioner - plaintiff is before this Court.

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The petitioner herein, who was plaintiff in the said suit, had filed the suit seeking relief of injunction and for damages against the respondent No.1 - Society.

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The Interim application – I.A No.3 came to be filed by the defendants seeking rejection of the plaint on the ground that defendant No.1 is the Air Craft Employees Housing Co-operative Society Limited and under Section 125 of the Co-operative Societies Act, 1959 (for short, the ‘Act’), two months notice is required to be given and that mandatory provision is not followed by the plaintiff. As such, the plaint needs to be returned.

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The Court below considering the submissions of

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both parties and also considering Order VI Rule 6 of CPC.,

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Order VI Rule 11 of CPC and Section 125 of the ‘Act’ had returned the plaint for presentation after complying the requirement of Section 125 of the ‘Act’. Aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner submits that

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initially, when office has raised objection with regard to issuance of notice to the Society, the Court had rejected the objections raised by the office by order dated

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03.03.2016 and the Court has held that the dispute between the parties is not touching either constitution, management or business of Society so as to attract the provisions as contemplated under Section 125 of the ‘Act’. Then, the Court had granted an order of status-quo .

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Therefore, in the present case, the learned counsel submits that when already the Court had passed an order rejecting the office objection and had given a finding that the suit is maintainable without giving notice.

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Under the said Act, prior notice is not required. Now, the Court ought not to have passed such order. He has drawn the attention of the Court to Section 125 of the ‘Act’ and submits that the suit cannot be instituted without prior notice against the Co-operative Society or any of its officers in respect of any Act touching the constitution, management or business of the Society until the expiration of two months. He submits that he has no connection to the Society either with the constitution, management or business of the Society. When the Society

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started interfering with the property of the plaintiff and demolished structure, he has come before the Court. If the relief that is seeking is not touching under Section 125 of the ‘Act’, there is no necessity for giving any notice and

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the Court below had failed to consider all these aspects.

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He has relied on the judgment of this Court in the case of Deepa House Building Co-operative Society Limited, Mysore vs. Vaikuntegowda (Since Deceased) by his L.Rs and Others¹ , when the similar issue fell for consideration before a Co-ordinate Bench of this Court, the Court relying on the judgment of the Full Bench of this Court has held that the plaintiff in the said suit seeking for the relief of partition and separate possession in respect of the suit schedule property. Incidentally, in the pleadings, it has been contended by the plaintiff that husband of defendant No.1 and father of defendant Nos.2 to 5, during his life time, had fraudulently and misrepresenting himself as only

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1 2015 (4) KCCR 2983

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son of Smt.Honnamma had got the khatha of suit schedule property changed to his name contrary to all the norms.

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There is no plea against defendants 6 and 7 except to the extent of showing that defendants 1 to 5 have sold the suit schedule property in favour of defendant 7 under the sale deed dated 16.05.2019. Now, it cannot be said that either it is touching the constitution/management or business of the society and held that notice under Section 125 of the ‘Act’ is not necessary. He has also relied on the another judgment of a Co-ordinate Bench of this

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Court in case of Smt.Hanumakka and others vs. H.M.T.Employees Co-operative House Building Society arising out of RFA No.524/2007 dated 18.07.2022 , wherein the suit is filed seeking an injunction restraining the society from interfering with his peaceful possession and enjoyment of the suit schedule property, then the Court has also dealt with Section 125 of

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the ‘Act’ and the Court held that from the careful scrutiny of the plaint, it is evident that the plaintiff has not sought any relief against the defendant/Society in respect of

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constitution, management or business of the Co-operative Society. Therefore, Section 125 of the ‘Act’ has no application to the factual matrix of the case. In similar lines, he has relied on the another judgment of this Court in the case of Smt.Dakshayanamma vs. Daivajna

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Credit Co-operative Society and others arising out of RFA No.1919/2017 dated 21.08.2023 . In that judgment, an order is passed by this Court relying on various other judgments of the Co-ordinate Bench of this Court. Further, he has relied on the judgment in the case

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of Vinayaka Griha Nirmana Sahakara Sangha Limited vs. Karnataka Appellate Tribunal and Others² . He has relied on the judgment of the High Court of Andhra

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Pradesh in the case of Yempalakula Vijaya Lakshmi, Kadapa District vs. The Cuddapah District NGO’s Co-

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operative Society, Kadappa and six others³ , where the Court was dealing with Section 125 of the ‘Act’, the Court has held on relying on the Division Bench that Section 125

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2 ILR 1995 KAR 518

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3 2010 SCC OnLine AP 480

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of the ‘Act’ is not attracted. Relying on these judgments, learned counsel for the petitioner submits that the Court below ought to have held that notice is not required under Section 125 of the ‘Act’.

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Learned counsel appearing for the respondents

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submits that the notice is mandatory under Section 125 of the ‘Act’. It is submitted that the business of the Society

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is acquiring the lands and allotting the plots to its members and in fact, the said land is acquired by the Society when the vendor of the plaintiff has questioned the said acquisition proceedings, the Division Bench of this Court had dismissed the said writ petition i.e., W.P.No.6410/2006 C/w W.P.Nos.5798/2006, 5795/2006, 5792/2006 and 6409/2006 dated 21.02.2007, whereby

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the appeal filed by the vendor of the plaintiff is dismissed. Learned counsel submits that it clearly shows that the plaintiff has no right in respect of the said property, even

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as contemplated under Order VI Rule 6 of CPC., a notice has to be given to the respondents and the Court below

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had rightly held that notice under Section 125 of the ‘Act’ is required. The Hon’ble Apex Court has also upheld the said order in W.A.No.373/2016 and connected appeals by order dated 19.01.2016. She has also relied on the judgment of the Co-ordinate Bench of this Court in the

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case of Sri.N.Nanjundappa vs. The Secretary in RFA No.1966/2013 dated 08.11.2022 , wherein the suit is filed against the society that it should be declared as owner and also sought for an order of permanent injunction against the defendant. He has purchased the property under the registered sale deed dated 11.06.1992.

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Then, the defendant - Society owns 17 guntas of land in Sy. No.7/4 towards the western side of the suit property and the defendant has nothing to do with the property of the plaintiff or playing fraud on the plaintiff, the defendant had manipulated certain documents and is trying to interfere with the suit property. In that factual background, the Court had held that in the plaint, the business of the defendant No.1 – Society is mentioned and the same has to be adjudicated. Under such

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circumstances, the Trial Court forming an opinion that prior notice having not been complied, the suit is not maintainable, which is based on factual and legal aspects.

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Hence, those are not sufficient grounds to admit the appeal for further consideration. Accordingly, the Court had dismissed the said appeal. Basing on those judgments, the learned counsel submits that notice under Section 125 of the ‘Act’ is mandatory as it is touching the business of the Society and the Court below had rightly returned the plaint and the plaintiff ought to have re-submitted the same after following the procedure and

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the writ petition is liable to be dismissed.

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Having heard the learned counsel on either side,

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perused the entire material on record.

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In this writ petition, the petitioner is the plaintiff

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and he has filed a suit for permanent injunction and also for damages. According to the plaintiff, he is the owner of

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the land and the defendant No.1 - Society had demolished

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all the sheds that are existing and he has sought for damages and also injunction. Initially, the Court by its proceedings by order dated 03.03.2016 has held that the prior notice is not required as the relief that is sought by the plaintiff do not fall under Section 125 of the ‘Act’ and has granted an order of status-quo in favour of the plaintiff. Now, before going into the aspect on the maintainability, it is appropriate to look at Section 125 of the ‘Act’, which reads as under;

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“125. Notice necessary in suits - No suit shall be instituted against a co-operative society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

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A bare reading of the same, makes it clear that

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in order to protect the interest of the Society, such a clause has been incorporated, where it concerns the

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constitution, management or business of the Society. Now, the respondent's case is that the business of the society is to provide residential plots to the members of the Society. As such, this case falls under Section 125 of the Act.

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This Court is not able to appreciate the

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submissions for the following among other reason. The defendants do not have any kind of business or any kind of contract or any transaction as enumerated under Section 125 of the ‘Act’. The case of the plaintiff is that defendant No.1 is interfering with his possession and the business of Society providing plots to its members does not mean that this would fall under Section 125 of the ‘Act’. The learned counsel appearing for the petitioner has relied on the several judgments, which were discussed in the preceding paragraphs, which makes it clear that the suit of this nature cannot be said that it touches any of the business, management or constitution of the Co-operative

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Society, which requires a notice as contemplated under Section 125 of the ‘Act’.

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It is the contention of the learned counsel for the respondents that the acquisition has attained finality by the order passed by the Hon’ble Apex Court and in fact, an appeal is filed by the vendor of the plaintiff. All these issues are touching up on the merits of the matter. It is for the defendant No.1 - society to place before the Court that it is the owner of the property and a suit for injunction is not maintainable. But that cannot be a ground to say that under Section 125 of the ‘Act’, a notice is required and on that ground, the plaint has to be rejected or returned. By order dated 03.03.2016, the objections of

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the office have already been rejected and the Court has passed an order that notice is not required. When that being so, the Court cannot pass such an order on the application of the defendant and even on the merit of the case also, the relief that is sought in the plaint does not touch any of the constitution, management or business of

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the Co-operative Society. As such, no notice is required

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under Section 125 of the 'Act'.

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Under these circumstances, this Court proceeds to pass the following:

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ORDER

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(i) The writ petition is allowed.

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(ii) The impugned order dated 12.08.2017 passed in O.S.No.1846/2016 by the XII Additional City Civil and Sessions Judge, Bengaluru (CCH-27) is set aside.

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(iii) The suit of the year 2016. Hence, the Trial Court shall dispose off the same as expeditiously as possible, but not later than one year.

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(iv) All IA’s in the writ petition shall stand closed.

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SD/JUDGE

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NBM

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List No.: 1 Sl No.: 5

B R Ravi Kumar v. the Air Craft Employees Housing

Case brief

What is this about?

What did the court decide?

B R Ravi Kumar v. the Air Craft Employees Housing

Case brief

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