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2019 Supreme(SC) 1081
SUPREME COURT OF INDIA
UDAY UMESH LALIT, VINEET SARAN, JJ.
Shivkishan – Appellant
Versus
Sujata Tarachand Makhija And Ors. – Respondents
Civil Appeal Nos.7652-7653 of 2019 (Arising out of Special Leave Petition (Civil) Nos.29516-29517 of 2016)
Decided on : 27-09-2019
For the Petitioner(s):Anupam Lal Das, Parthiv K. Goswami, Ishan Bisht, Anirudh Singh, Krishana Barua, Palak Mahajan, Diksha Rai, Advocates
For the Respondent(s):Chander Shekhar Ashri, Vinay Navare, Gwen Karthika, Abha R. Sharma, Gagan Sanghi, Rameshwar Prasad Goyal, Farrukh Rasheed, Advocates
Headnote:
Co-operative law - Society allotting plots to members in meeting dated 18.12.1988 - Disputant invited to and attending that meeting - Making a deposit - Requesting for allotment of plot no. 2 - Society misrepresenting that plots no. 1 and 2 were not available - Disputant an employee of LIC having preferential right - Cooperative court by interim order injuncting any transfer - Sale deed for Plot no. 2 executed in favour of appellant on 25.10.1989 - Allotment made by resolution dated 25.03.1990 - Appellant neither invited to nor attending meeting dated 18.12.1988 - Not making any deposit as on that date - Not an employee of LIC - Sale deed executed in spite of injunction - High Court rightly interfered. (Para 29, 30)
Facts of the case:
The Disputant namely the first Respondent herein thus alleged that Plot No.2 was illegally allotted to the Opponent No.3 (the Appellant herein) and prayed that the Resolution No.5 dated 25.03.1990 as well as the sale deed dated 25.10.1989 executed in favour of the Appellant be set aside.
An interim order was passed on 25.04.1989 by the Cooperative Court at Nagpur injuncting the Society from making any allotment in respect of Plot No.2. However, despite such interim order, a registered sale deed was executed by the Society in favour of the Appellant in respect of said Plot on 25.10.1989. Later, in the General Body Meeting of the Society held on 25.03.1990 the allotment of Plot No.2 and the execution of sale deed in favour of the Appellant was confirmed vide Resolution dated 25.03.1990.
Thereafter, by way of amendment paragraphs 5(a), (b) and (c) were inserted in the Dispute Application and it was prayed that the Resolution dated 25.03.1990 and the sale deed dated 25.10.1989 be quashed and set aside.
the Cooperative Court found that the Disputant had proved that she had paid a sum of Rs.4,750/-to the Secretary of the Society; that she had handed over the membership application Forms ‘E’ & ‘I’ and requisite fees to the then Secretary of the Society in the meeting dated 18.12.1988 but the Disputant could not claim to be the Member or deemed Member of the Society and that she was not entitled to any relief as prayed for. However, the Cooperative Court observed that her husband was entitled to get sale deed executed in respect of Plot No.26 after getting all the formalities completed.
The Cooperative Appellate Court set aside the order dated 31.01.2004 passed by the Cooperative Court and allowed Dispute
The High Court, however, found that the Disputant could not have given option for Plot No.2 on 18.12.1988 as she was not a Member of the Society on that date; that she acquired the membership rights on and after 18.03.1989; that allotment of Plot No.2 to the Appellant was without following proper procedure and was done arbitrarily and that after quashing the allotment it must be left to the Society to follow the procedure in accordance with law for allotting Plot No. 2.
Finding of the Court:
High Court rightly interfered with allotment of plot no. 2 to appellant.
Result: Appeals dismissed.
JUDGMENT :
Uday Umesh Lalit, J.
1. Leave granted.
2. These appeals challenge the decisions of the High Court, [High Court of Judicature at Bombay, Nagpur Bench, Nagpur], namely,
(i) Judgment and Final Order dated 21.09.2015 passed in Writ Petition No.1460 of 2006 and; (ii) Final Order dated 01.08.2016 passed in Miscellaneous Civil Application No.206 of 2016 in Writ Petition No. 1460 of 2006(D).
3. The facts leading to the filing of Dispute No.136 of 1989 under the provisions of Section 91 of the Maharashtra Cooperative Societies Act, 1960 (‘the Act’ for short) from which present appeal has arisen, as culled out from the decision of the Cooperative Court are as under:-
“The opponent No.1 is a duly registered Cooperative Housing Society having its registered office at Sneha Nagar, Nagpur. The opponent No.2 is the then Secretary of the opponent No.1 Society. The disputant is an employee of Life Insurance Corporation India and is working at Nagpur. The employees of the Life Insurance Corporation are admittedly the members of the opponent No.1 Society and have a preferential claims over other members who are not working in the L.I.C. It is alleged that opponent No.2 being a Secretary has indulged himself in illegal activities including misappropriation of funds of the Society for his own use. It is also alleged that the opponent No.2 has used to take the amounts from the members of the Society in cash and used to misappropriate the same as alleged in para – 1 & 2 of the dispute. It is further stated that as per policy of the Society, the senior members shall have preferential claim in the matter of allotment of plots of the Society. The disputant with an intention to get the allotment of plot in the Society, paid certain amounts on dated 5-11-1981 vide receipt No.334 on dated 9-9-1983; and accordingly, the Society assured the disputant that he shall be allotted the plot admeasuring 3000 Sq. Ft. in the Layout in Kh. No.152/3 of Mouja Sornalwada on dated 18-12-1988, disputant submitted her application for the membership/allotment of shares with the Form – ‘E’ & ‘I’ to the Secretary of the society. In the: said meeting, she was allowed to give her choice for allotment of plot to her, as per the seniority list, then prepared on dated 15-12-1988, wherein her name appears at Sr. No.5. On the same day, the disputant also deposited an amount of Rs.105/-as per demand of the society. But neither receipt of the said amount was issued to her nor society has communicated any decision within 3 months from the date of receipt of her application for membership, and hence, she deemed to be a member of the opponent No.1 Society; and as such, she is entitled to claim a plot in dispute. It is further alleged that the plot No 2 has been wrongly allotted to the opponent No.3, who claims to be a member of opponent No.1 Society. It is also stated that disputant is a senior member to the opponent No.3. However, the society has illegally executed the sale deed of the said plot on dt. 25-10-1989 in favour of opponent No.3, who is not eligible to claim the said plot. In view of this, it is stated that the allotment of plot in dispute to the opponent No.3 by society vide Resolution No.5 passed in A.G.M. in dated 25-3-1990, is illegal and required to be quashed and set aside, as alleged in Para 5 (a) & (b) of the dispute. It is also stated that the disputant deposited the amount of Rs.3,000/-on dt. 5-11-1981, vide receipt No.334, Rs.4,750/-as per letter of the society dt. 9-9-1983 by cheque No.105998, dt, in 19-8-83; Rs.2500/-as per letter of opponent No.2 dt.16-10-1987; Rs.3000/-by self cheque No.503079, dt. 17-9-87: Rs.5000/-as per letter dt. 14-10-88 Rs.105/-or on dt.18-12-88. Thus, it is stated that the disputant has paid in all total amount of Rs.18,355/-to the opponent No.1 society from time to time as alleged and sated in para – 5[c] of the dispute. It is further alleged that in the meeting dt. 18-12-1988, the Secretary has allotted the plots according to his
