2002 Supreme(Bom) 311

IN THE HIGH COURT OF BOMBAY
Dr. D.Y. Chandrachud, J.
Suprabhat Co-operative Housing Society Ltd. another.... Applicants.
Versus
Span Builders another.... Respondents.
Civil Revision Application No. 611 of 2002, decided on 27-3-2002.
Advocates appeared :
G.S. Godbole, for applicants.
D.S. Chandanani, for respondents.

Headnote:Maharashtra Co-operative Societies Act, 1960 - Sections 2(16) and 164 - Civil Procedure Code, 1908, Section 115 - Order VII, Rule 11(d) - Society - Touching business of - Notice to society - Necessity of - Work done by builder for cooperative society for construction of houses on plots allotted to members - Delay in payment - Suit for by builder - Opposed - Notice under Section 164 of MCS Act not issued to respondents - Held - Work of construction of houses was touching business of society - Notice under Section 164 of MCS Act is necessary for that. - In the present case, the first applicant is a Co-operative Housing Society and has been registered as such under the Act. A housing society is defined by Section 2(16) to mean a society, the object of which is to provide its members with open plots for housing dwelling houses or flats or if open plots the dwelling houses or flats are already acquired to provides its members common amenities and services. The first applicant is a Co-operative Housing Society and falls within the sub-classification of a tenant co-partnership Housing Society within the meaning of Rule 10 of the Rules. The objects of the first applicant inter alia include to buy or take on lease the plot bearing No. C 39 of Section 12, Kharghar, admeasuring 7252 sq. metres and to construct flats thereon for allotment to the members of the society for their authorised use. The construction contract which was entered into with the respondents was clearly in pursuance of the basic object of the applicants. The contractual relationship which was entered into between the applicants and the respondents was thus in furtherance of and towards implementing the basic object of the applicants as a tenant Co-partnership Housing Society. The dispute which has arisen between the parties is in the performance of the contract which was thus entered into. Therefore, having regard to the principle in corporated in Section 164 of the Act, the suit which has been instituted by the respondents in clearly one which touches the business of the society. The suit was in the circumstances, clearly not maintainable since it is an admitted position that no notice under Section 164 of the Act was served.

       Civil Procedure Code, 1908 - Order VII, Rule 11 (d) - Maharashtra Co-operative Societies Act, 1960, Sections 91 and 164 - Maharashtra Cooperative Societies Rules, 1961, Rule 10 - Rejection of plaint - Contract for construction of flats - Between Co-operative Housing Society and builder - Construction work stopped by contractor for want of payment - Suit for recovery of money filed by builder against society - Dispute regarding performance of contract - Suit filed touches business of society - Notice under Section 164 of Societies Act for institution of suit not served - Suit not maintainable - Plaint liable to be rejected for want of notice under Section 164 of Societies Act. - The first applicant is a Co-operative Housing Society and has been registered as such under the Act. A housing society is defined by Section 2 (16) to mean a society, the object of which is to provide its members with open plots for housing, dwelling houses or flats; or if open plots, the dwelling houses or flats are already acquired, to provide its members common amenities and services. The first applicant is a Co-operative Housing Society and falls within the sub-classification of a Tenant Co-partnership Housing Society within the meaning of Rule 10 of the rules. The objects of the first applicant inter alia include to buy or take on lease the plot bearing No. C-39 of Sector 12, Kharghar, admeasuring 7252 sq. metres and to construct flats thereon for allotment to the members of the Society for their authorised use. The construction contract which was entered into with the respondents was clearly in pursuance of the basic object of the applicants. The contractual relationship which was entered into between the applicants and the respondents was thus in furtherance of and towards implementing the basic object of the applicants as a Tenant Co-partnership Housing Society. The dispute which has arisen between the parties is in the performance of the contract which was thus entered into. Therefore, having regard to the principle incorporated in Section 164 of the Act, the suit which has been instituted by the respondents is clearly one which touches the business of the Society. The suit was in the circumstances, clearly not maintainable since it is an admitted position that no notice under Section 164 of the Act was served.

       In pursuance of the provisions contained in Order VII, Rule 11 (d) of the Code of Civil Procedure, 1908, the plaint is liable to and is accordingly rejected for want of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960. It is needless to add that it would be open to the respondents to institute a fresh suit after due notice as required under Section 164 of the Maharashtra Co-operative Societies Act, 1960