IMPORTANT POINT
The court established that excessive delay in seeking leave to defend in co-operative society disputes cannot be condoned without sufficient justification.

JUDGMENT :

Vaibhavi D. Nanavati, J.

1. The petitioner herein is a Co-operative Housing Society in which the respondent owns 11 shops and the amount of maintenance is not paid by the respondent. In view thereof, the petitioner herein has filed Summary Lavad Case No.14 of 2012 under Section 99(4) of the Act. Upon issuance of summons on 07.03.2012 and 16.03.2012, the appearance of learned advocate appearing for the respondent came to be filed. The respondent did not file any application for leave to defend as contemplated under Section 99(4) of the Act read with Rule 41A of the Rules of the Gujarat Co-operative Societies Rules, 1965 (for short ‘the Rules) and preferred an application to decide the preliminary issue with respect to jurisdiction. The said application came to be rejected by the learned Board of Nominees, against which a Revision Application No.95 of 2015 came to be filed before the Tribunal which also came to be rejected by order dated 18.01.2018.

1.1 The respondent herein filed an application seeking leave to defend in Summary Lavad Case No.14 of 2012 on 06.07.2017 i.e. after almost 5 years, on appearing before the Board of Nominees. The said application came to be filed with an application seeking condonation of delay. The petitioner objected to the same. The learned Board of Nominees condoned the delay of more than 5 years by order dated 05.03.2018; duly produced at Annexure – G. Being aggrieved by the said order, the petitioner preferred Revision Application No.25 of 2018 before the Tribunal. By order dated 14.02.2022, the Tribunal rejected the said Revision Application No.25 of 2018 filed by the petitioner herein.

1.2 Being aggrieved and dissatisfied by the order dated 05.03.2018 passed by the learned Board of Nominees, Surat, condoning the delay as also, the order dated 14.02.2022 passed by the Tribunal in Revision Application No.25 of 2018 confirming the order dated 05.03.2018 passed by the learned Board of Nominees, the petitioner herein has preferred the present petition under Article 226 and 227 of the Constitution of India and has prayed for the following reliefs:

“(A) This Hon'ble Court be pleased to issue a writ of mandamus and/or writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 5.3.2018 passed by the learned Board of Nominees Court, Surat condoning the delay as also the order dated 14.2.2022 passed by the Tribunal in Revision Application No.25 of 2018 confirming the order dated 5.3.2018 passed by the learned Board of Nominees Court,

(B) During the pendency hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, execution and operation of the order dated 5.3.2018 passed by the learned Board of Nominees Court, Surat condoning the delay as also the order dated 14.2.2022 passed by the Tribunal in Revision Application No.25 of 2018 confirming the order dated 5.3.2018 passed by the learned Board of Nominees Court and further be pleased to stay the further proceedings of Summary Lavad Case No.14 of 2012 pending before the learned Board of Nominees Court, Surat.

(C) Any other and further reliefs as deemed just and proper looking to the facts of this case, may kindly be granted in favour of the petitioner, in the interest of justice.”

2. Heard Mr. Baiju Joshi, learned advocate appearing for the petitioner and Mr. Bomi H. Sethna, learned advocate appearing for the respondent.

3. Mr. Baiju Joshi, learned advocate appearing for the petitioner, submitted that the Summary Lavad Case No.14 of 2012 came to be filed by the petitioner society seeking outstanding amount of maintenance, due and payable from the respondent. It is submitted that the respondent entered appearance upon issuance of summons in the said proceedings. The respondent did not file an application for leave to defend as provided under Section 99(4) of the Act read with Rule 41A of the Rules. However, preferred an application to decide preliminary iss