Compliance with Section 48 and Rule 48(5) of the MCS Act is mandatory for a cooperative society to claim benefit/protection, and notice under Section 164 is not necessary before filing a suit.

1. Admit. Taken up for final disposal with the consent of learned counsel for rival parties.

2. This Second Appeal is filed by original plaintiff against the judgment and decree dated 27.03.2014 passed by District Judge1, Yavatmal in Reg. Civil Appeal No.34/2013 confirming the order below Exh.15 in Reg. Civil Suit No. 87/2012 passed by Civil Judge Jr. Dn., Shegaon on 23.08.2013 dismissing the suit filed by appellant for nonobservance of provision of section 164 of the Maharashtra Cooperative Societies Act (hereinafter referred to as “MCS Act” in short).

FACTS: 3.

The appellant-plaintiff purchased Gat No.83 admeasuring 2 Acres of Mouja Lasura Bk, Tq. Shegaon, Dist. Buldhana by registered sale deed dated 19.04.2002 from Raju Gopikisan Rathi. Before purchasing the property, he had ascertained, by all known methods, the saleable interest of the vendor. He had verified 7/12 extract when he purchased the land in the year 200102 but there was no charge mentioned in the said 7/12 extract. It, however, appears that the vendor Raju Gopikisan Rathi on 17.06.2002 i.e. after the execution of sale deed in favour of appellant, mortgaged the said property with respondent no.1Credit Cooperative Society, which granted him loan by mortgage of the said property without verifying whether he had sold the property to the appellant. Raju Rathi was member of respondent no.1Credit Cooperative Society since he obtained the loan but the appellant had no concern with the said society. Obviously, because he had purchased it even before it was mortgaged. The appellant plaintiff issued a notice on 27.08.2012 u/s. 164 of the MCS Act and filed suit on 10.09.2012 i.e. before the expiry of two months period for perpetual injunction u/s. 38 of the Specific Relief Act against respondent no.1Society and claimed injunction against Society for attachment of suit property. Respondent no.1Society i.e. defendant no.1 therein, filed an application Exh.15 with a prayer to dismiss the suit for noncompliance of section 164 of the MCS Act. The application Exh. 15 was heard and the trial Judge allowed the said application and dismissed the suit. The appellant preferred appeal Reg.C.A.No. 34/2013 before the District Judge who dismissed it by the impugned appellate order and confirmed the order made by the trial Judge.

SUBMISSIONS:

4. In support of the Appeal, Mr. Bhide, learned counsel for the appellant argued that the appellant had purchased the property even before the same was mortgaged with respondent no. 1Society on 17.06.2002; while the sale deed in favour of the appellantwas executed earlier on 29.04.2002. The appellant was, therefore, hardly concerned with respondent no.1Society and had nothing to do with the loan that was subsequently taken by his vendor and subsequently mortgaged the suit property to respondent no.1 and, therefore, the question of compliance of Section 164 of the MCS Act or to wait for a period of two months as per the provisions of section 164 of the MCS Act did not arise. He submitted that even if notice under section 164 was issued by the appellant, the same was wholly unnecessary in the instant case. He, therefore, submitted that the appellant was entitled to exercise all his civil rights in the court of law which he did. Mr. Bhide, further urged that u/s. 48 of the Maharashtra Cooperative Societies Act such a charge is required to be reflected in the 7/12 extract, which was not reflected. Mr. Bhide, then, argued that at any rate without issuing notice or waiting for a period of two years as per section 164 of the MCS Act, the appellant was entitled to exercise his civil rights. The appellant, who with all care and caution purchased the suit property for valuable consideration and for no reasons the society is harassing him.

5. Per Contra, Mr. Dharmadhikari, learned counsel for respondent no.1Society, vehemently opposed the Appeal and submitted that the loanee Raju Rathi, vendor of the appellant, had applied for loan on 14.12.2001 and