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2011 Supreme(Bom) 543
2011 (5) ALL MR 815
High Court of Judicature at Bombay
S.J. VAZIFDAR
B.Y. Chavan & Another
Versus
Association of Tenants of the Bombay Catholic Housing Society & Others
ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.641 OF 2011 IN SUIT NO.1 OF 2010 AND NOTICE OF MOTION NO.148 OF 2010 IN SUIT NO.1 OF 2010 ALONG WITH SUIT NO.1 OF 2010
Decided on : 05-05-2011
For the Plaintiffs:Iqbal Chagla, Senior Counsel with F.E. DeVitre, Senior Counsel, Jimmy Avasia, J.P. Sen and Mustafa Doctor i/b Dastur Dadhich & Kalambi, Advocates.
For the Defendants:Vijay Thorat, Senior Counsel with Chetan Kapadia, Ivor Peter D’Cruz, and A. Lokhandwala i/b Lokhandwala & Co., J.M. D’Silva, E.P. Bharucha, Senior Counsel with Farhan Dubash i/b Hetal Patel, Dinyar Madon, Senior Counsel with Robin Jaisinghani and Aditya Thakkar i/b Khare Legal Chambers, S.R. Page, Robin Jaisinghani i/b R.K. Bobde, S.U. Kamdar, Senior Counsel with Vineet Naik, Mr.C.D. Mehta, Mr.B.C. Mehta and Mr.Lalan Gupte i/b Dhruve Liladhar & Co., Rafiq Dada, Senior Counsel with Prasad Dhakephalkar, Dr. Birendra Saraf and Ms. Tanmayi Gadre i/b Kishore Thakordas, Kumul Taly with Rakesh Misar i/b S. Mohamedbhai & Co., Advocates.
Headnote:Maharashtra Co-operative Societies Act, 1960 - Sections 91 and 163-Dispute under Section 91 of Act-Raising of- Bifurcation of society-Order of-Passed by Assistant Registrar-Ceased to exist consequent to legal proceedings that followed-Agreement even if otherwise valid and enforceable ceased to be effective-Not attracts Section 91 of Act to raise a dispute. [1991 (1) SCC 469- Relied on.]-The agreement dated 30.8.1987 entered into between plaintiff No. 1 and the unregistered tenants association does not fall within the ambit of Section 91. The agreement was not entered into by plaintiff No. 1 with the tenants association or its members as the members of defendant No. 71, the society. The plaintiffs’ agreement dated 30th August, 1987 is dependent upon an order of bifurcation under Section 18(1). If the order of bifurcation as contemplated under the agreement is not in existence for any reason, the agreement even if otherwise valid and enforceable would cease to be effective. The agreement was not with the members of the tenants association as the member of the defendant No. 71 society but with them/persons who may acquire an interest in the new society that may be formed in future in the event of an order of bifurcation as contemplated under the agreement, being made.
Maharashtra Co-operative Societies Act, 1960 - Section 164-Notice under-Suit against society-Notice under Section 164 of Act, mandatory-To enable society to avoid litigation by settling a just claim-Notice can be waived-Absence of notice-Can be cured by allowing an amendment of plaint by dropping society and rejoining it with a notice served in meantime.-If the conduct of a party is such that the giving of a notice would render the suit to be instituted against the society or any of its office bearers infructuous or would effectively or substantially prejudice the parties right to approach the Court for relief, interim or final, it must be deemed to have waived the requirement of a notice under Section 164. Provisions such as Section 164 of the Maharashtra Co- operative Societies Act, 1960 and Section 80 of the Code of Civil Procedure are for the benefit of a party that may be affected by the litigation. As observed in paragraph 9 of the said judgment :
"A statutory notice for filing of the suit is merely to put the defendant on guard so that it can avoid the lis by complying with the demand of the plaintiff based on the cause of action disclosed in the notice."
The notice, inter alia, is to enable the society, upon being informed by the Registrar, to avoid litigation involving time and expense by settling a just claim. If therefore, such a party by its act deprives the plaintiff of an opportunity of approaching the Court and seeking relief, final or even interlocutory, it is axiomatic that it does not wish to avail the benefit or opportunity provided by Legislature to avoid the litigation by setting the matter or otherwise. On the question of waiver, it matters little whether the conduct prejudicially affects the right to obtain the final relief or even interim reliefs. The logical inference is that the party does not wish to settle the dispute and avoid litigation. It, thereby, waives its right to such a notice. The plaintiff may yet give a notice and claim the benefit of exemption of the period of limitation. That however, would not lead to a conclusion that the defendant cannot waive a notice.
This defect can be cured by allowing the plaintiff to amend the plaint by dropping the society and rejoining it with a notice served in the meantime.
1. The preliminary issues were raised on 15th April, 2011. I rejected the preliminary issues before proceeding to hear the parties on the merits of the matter. I heard the parties on merits from 20th April, 2011. However, both the parties stated that they had no objection to my dealing with the preliminary objections and the Notice of Motion by a common order and judgment.
2. The following preliminary issues have been framed:-
ISSUES
I) Whether the suit is maintainable in the absence of a notice under section 164 of the Maharashtra Cooperative Societies Act, 1960?
II). Whether this Court has no jurisdiction to entertain this suit in view of sections 91 and 163 of the Maharashtra Co-operative Societies Act, 1960?
RE. : SECTION 164 :
3. Defendant No.71 is the Bombay Catholic Co-operative Housing Society Limited (hereafter referred to as “the society”). Defendant No.2 to 70 are tenants, tenant-members and members of the society or occupants on the property of the society. Defendant No. 1 is an unregistered association of the tenant-members. Defendant No.72 and 73 are M/s. Sumer Associates and Robin Home Developers Pvt. Ltd., who claim to have purchased a part of the property of the society in respect whereof the plaintiffs claim to have a prior right.
4. Mr.DeVitre did not dispute the fact that the provisions of section 164 of the said Act are mandatory. He however, submitted that a notice under section 164 can be waived. He further submitted that the absence of a notice under section 164 is a formal defect and can be cured by allowing an amendment of the plaint by dropping the society, which is only one of the parties and rejoining it with a notice served in the meantime. I find the submissions to be well founded, both on principal and precedent.
5. In Pimpri Refugee Industrial Co-operative Society v. Parmanand Bhimandas Talreja, LJ SOFT 172 = 2007(2) ALL MR 306, a learned single Judge of this Court held in paragraph 6 as under:-
“6. It is not in dispute that the petitioner never raised the issue regarding the absence of notice under Section 164, either in the written statement or even at the appellate stage. It cannot also be disputed that the requirement of notice under Section 164 can be waived and the waiver can be specific or implied. It is settled position in law that when a statute requires a notice should precede the filing of a suit, the compliance of such statutory provision is mandatory, but at the same time, the right thereof can be waived by the party for whose benefit the provision regarding pre-suit notice has been made, and further that the waiver can be expressly made as also impliedly. While dealing with the provision of law comprised under Section 30 of the C.P.C., the Apex Court in Dhian Singh Sobha Singh and another v. Union of India, reported in AIR 1958 SC 274 as well as the Full Bench of our High Court in Vasant Ambadas Pandit v. Bombay Municipal Corporation and others, reported in AIR 1981 Bombay 394 had held that the notice can be lawfully waived. Undoubtedly, the waiver has to be established by the plaintiff. However, the same can be presumed when inspite of specific averment in the plaint regarding service of notice, the sufficiency of the notice is not challenged by the defendant till the disposal of the appeal.” (emphasis supplied.)
What constitutes waiver must depend upon the facts of each case.
6. Section 164 of the said Act reads as under :-
“164. Notice necessary in suits :
No suit shall be instituted against a society, or any of its officers, in respect of any act touching 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.”
7. If the conduct of a party is such that the gi
