The court affirmed that a suit under Section 96 of the Gujarat Cooperative Societies Act is not maintainable without credible evidence of membership, and claims filed after six years from the cause of action are barred by limitation.

ORAL JUDGMENT

1. Issue RULE , returnable forthwith. Mr. P.S. Champaneri, learned advocate waives service of Rule for and on behalf of the respondent.

2. Heard Mr. Vaibhav N. Sheth, learned advocate appearing for the petitioners and Mr. P.S. Champaneri, learned advocate appearing for the respondent.

3. By way of the present Petition, the petitioners herein have challenged the impugned judgment and order dated 12.04.2017 passed in Appeal No. 804 of 2003 by the Gujarat State Cooperative Tribunal, Ahmedabad, confirming the judgment and award passed by the Board of Nominee in Lavad Case No. 2993 of 2002 dated 22.04.2003.

4.1. Briefly stated that, the petitioners herein preferred the Lavad Case No. 2993 of 2002 before the Board of Nominee praying for allotment of open land of Plot No. 10 (except the land of three shops), which was allotted to the deceased father of the petitioners, by the respondent – society, by passing resolution in general meeting dated 26.10.1964 and accordingly, deceased father has paid Rs.4,620/- for land and respondent society has issued Share Certificate No. 87. The said Lavad Suit is duly produced at Page-50.

4.2. The respondent herein filed written submission/ written statement to the said Lavad Suit, denying any such Share Certificate issued to the father of the petitioners and in view thereof, once petitioners’ father was not a Member of the Society, the said Suit was not maintainable against the society, so also the petitioners’ father having not been member of the respondent - society. Hence, the aforesaid could not fall within the ambit of Section 96 of the Gujarat Cooperative Societies Act , 1961 (hereinafter referred to as ‘the Act’ for short).

5.1. Mr. Vaibhav Sheth, learned advocate appearing for the petitioners herein submitted that, the impugned orders passed by the competent authorities, are required to be interfered with, mainly on the ground that, an adverse inference was necessary to be drawn against the respondent – Society for non-production of the permanent record of the society and it was necessary to hold that, the petitioners were and are members of the society through their predecessors in title, on the basis of the general resolution dated 26.10.1964 passed in a general meeting held on the same day.

5.2. It is submitted that, the competent Forum did not properly appreciate the contention raised at Exh.37, a receipt of Rs.250/- of share certificate dated 26.10.1979, stating that Rs.250/- were paid in cash towards issuance of share certificate, the said receipt was issued by one Shri Maganlal K. Patel, Secretary of the respondent – Society on even date, i.e. on 26.10.1979.

5.3. It is submitted that, the competent forum erred in holding that the documents on the basis of which claim of member in the respondent – society, was based were not reliable and they were suspicious documents. It is submitted that, the share certificate no. 81 was produced in the cross-examination of the respondent witness. The same was ordered to be exhibited, however, unfortunately, the Exhibit was not marked. The aforesaid is not properly appreciated by the competent authorities.

5.4. Mr. Sheth, learned advocate relied on the evidence of one Mr. Chandravadan Upadhyay, witness of the respondent – society, wherein, it was admitted in his cross-examination that he was ready to produce record since 1964 to 1980, except the loss of minutes books, however, no document of the said period between 1964 and 1980 was ever produced before the competent authorities, and therefore, adverse inference should have been drawn against the respondent – society.

5.5. It is submitted that the competent forum has not examined properly the evidentiary value of Exhs. 32 to 37. It is submitted that the competent forum erred in rejecting the claim of the petitioners on the ground of delay, on the basis of Section 97 (b) of the Gujarat Cooperative Society Act, 1971, which as stated by the Hon’ble Members of the Tribunal prescribed a period of six