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2008 Supreme(Guj) 95
2008 (3) GCD 2195 (Guj)
Hon’ble Mr. Justice Jayant Patel
Jugalkishore Ramnaresh
Versus
Chandicharan Mahanti & Ors.
Special Civil Application No. 12610 of 1994—Decided on 13/03/2008
Appearance :
Mr. Suresh M. Shah, for the Petitioner No. 1.
Notice Served, for the Respondents No. 1 & 3.
Notice Unserved, for the Respondents No. 2 & 4.
Served by Affix.(N), for the Respondent No. 5.
DS AFF. not Filed, (R) for the Respondents No. 5 - 7.
Rule Unserved, for the Respondent No. 6.
Rule Served, for the Respondent No. 7.
Point in Issue :
Whether President of Registered Association can preferred appeal against a decree of Nominee in the individual capacity when association is aggrieved.
Headnote:Head Note :
Gujarat Co-operative Societies Act — Section 96 — Non-Trading Corporation Act, 1959 — Section 16(2) — Constitution of India, 1950 — Article 227 — Lavad Suit — Declaration and perpetual injunction — Decreed ex parte — Appeal by President of one Registered Association — Not a party to the suit — Sustainability — Finding of — Lavad suit filed by five members of R.P. Co-operative Housing So. Ltd. against Society and Defendant No. 2 — In absence of any reply by defts suit was decreed ex parte — The petitioner though not a party in the suit, preferred appeal against the judgment and award of Ld. Nominee claiming President of Murti Owner’s Association — However, as he was not a party in the suit proceedings application was filed for leave to prefer appeal — The application was dismissed by Tribunal — Court observed that it was rightly dismissed by Tribunal because said Association was registered one as alleged by appellant himself and it was a legal entity which could sue and can be sued on it’s own name — The legal entity of the President of such Association was different than that of Association itself — Therefore, if the Association is aggrieved by any decision of the Board of Nominee the petitioner in individual capacity or even describing himself as the President cannot prefer an appeal on his own name as done by appellant in the case — The petitioner appellant has no interest what so ever and he can be held as aggrieved person by the decision of Nominee — Therefore, the order of the Tribunal of rejecting the application does not call for interference — Hence, petition is meritless and it is dismissed.
Held :
It is undisputed position that the Association has been granted registration and the petitioner has also made statement in the petition at paragraph 1 that it has been granted registration under NTC Act vide Order No. G.4291 dated 25.9.1991. Therefore, once the Association is registered, as per the language used by the Legislature, it is a body Corporate by the name contained and capable of exercising all the functions of a Corporate Body and having perpetual succession and a common seal. Therefore, once Non-Trading Corporation is registered under NTC Act by virtue of Section 16(2) of the Act, it becomes a legal entity and consequently, can sue and can be sued on its own name. The legal entity of the President of the Association is different than that of the Association itself. Therefore, if the Association is aggrieved by any decision of the Board of Nominee, the petitioner, in individual capacity or even describing himself as the President cannot prefer appeal on his own name, but such appeal even if was to be preferred, could be preferred by the Association. It is an admitted position that no right even on the basis of the documents produced, if any, of the so-called Resolution and of the payment of contribution are created in favour of the petitioner, who has preferred the petition. Therefore, the petitioner can be said as a person having no interest whatsoever in the so-called membership, nor can he be said as allegedly aggrieved by the decision of the Nominee. It is true that the Tribunal has not examined the matter on the aforesaid aspects, however, such being the question of law as provided by NTC Act itself, the same can be considered while exercising the power under Article 227 of the Constitution of India. [Para 6]
Law Laid Down :
Once Non-Trading Corporation is registered it becomes a legal entity and can sue and can be sued on it’s own name.
Petition Dismissed
Jayant Patel, J.—The short facts of the case appear to be that the petitioner, Jugalkishore Ramnaresh Ray, claiming himself to be the President of Murli (Satellite) Owners’ Association (hereinafter referred to as “the Association” for the sake of convenience), which, as per him, is a registered non-trading Association, has preferred the present petition for challenging the order passed by the Tribunal dated 27.07.1994 in below Application for leave to prefer appeal being Misc. Application No. 4/1994.
2. It appears that five members of Rushvina Park Cooperative Housing Society Limited filed a Lavad Suit No. 544 of 1992 under Section 96 of the Gujarat Cooperative Societies Act (hereinafter referred to as “the Act”) for the declaration and the perpetual injunction to the effect that the transaction of the society, if any, be declared as illegal and void and the Society and one Nathabhai Patel be restrained from making any construction over the land of common plot of the Society and it was also prayed in the said suit that the Society be restrained from admitting any person as member other than the original 404 members of the Society and the Society be further restrained from creating in interest of any third party over the land. In the said suit, it appears that as neither Society, nor Defendant No. 2 therein, namely Nathabhai Patel had filed any reply, the matter proceeded ex parte and the learned Nominee, based on the evidence available on behalf of the plaintiff, passed the judgement and award dated 18.08.1992, whereby the suit was decreed. The petitioner, claiming in capacity as the President of the Morbi (Eralite) Owners’ Association (which is, as stated by Mr.Shah, learned Counsel for the petitioner, a typing mistake and it should be treated as ‘Murli (Satellite) Owners’ Association), preferred Appeal No. 40 of 1994 against the judgement and award of the learned Nominee dated 18.08.1992. However, as the appellant therein was not party in the suit proceedings before the learned Nominee, Misc. Application No. 4 of 1994 was also preferred for leave to prefer appeal on the ground that the petitioner was aggrieved by the aforesaid decision of the learned Nominee. The Tribunal, after hearing both the sides, passed the order dated 27.07.1994, whereby on merits, the Tribunal found that there was no interest of the appellant - applicant and, therefore, leave could not be granted and, therefore, the applicant has been dismissed. It is under these circumstances, the petitioner has approached this Court by preferring the present petition.
3. The learned Counsel for the petitioner mainly contended that as the petitioner was admitted as a nominal member vide Resolution of the Society dated 29.11.1991 and the contribution was also accepted by the Society vide Receipt dated 28.01.1992, copy whereof is produced at Annexure A and B respectively, the Tribunal ought to have granted leave to prefer appeal to the petitioner, since the petitioner could be said as aggrieved by the judgement and award of the Nominee, which as per the petitioner was collusive or ex parte. He submitted, that the Tribunal has committed error in not granting leave to prefer appeal and, therefore, this Court may quash the order of the Tribunal and may direct the appeal to be heard on merits.
4. If the records, as produced by the petitioner, are considered on its face value, then also it appears that as per the petitioner, the Society had resolved to admit Association as a nominal member vide Resolution dated 29.10.1991 and the receipt has been issued by the Society to the said Association dated 28.01.1992 for the payment of Rs. 5,000/-. Share certificate issued in favour of the Association is not produced on record by the petitioner to show that after the receipt of the contribution, the nominal membership was duly conferred by issuance of share certificate as nominal member. Further, the so-called nominal membership is of the Association and not to the petitioner
