Devkinandan Co-op. Housing Society Ltd. v. I. M. Purohit
1991-09-07
R.A.MEHTA, Y.B.BHATT
body1991
DigiLaw.ai
R. A. MEHTA, V. S. BHATT, JJ. ( 1 ) THE petitioner complains of breach of an interim order dated 27th November 1990 issued by the Additional Registrar (Appeals), Cooperative Societies, Gujarat State, in a Revision Application under Section 155 of the Gujarat Co-operative Societies Act. The ex parts interim order directed stay of implementation of the order dated 8th november 1990 passed by the Assistant Registrar, Cooperative Societies, mehsana, whereby he had directed Annual General Meeting of the Devkinandan co-op. Housing Society to be held on 29th November 1990. Inspite of the said stay order, according to the petitioner, the respondent No. 1 had disobeyed the same by not staying the implementation of that order and facilitated respondent No, 4 (who was appointed to conduct the meeting) to conduct the aforesaid meeting on 29th November 1990 and that meeting was held in breach and in wilful defiance of the said interim order. ( 2 ) THE respondent No 1, in his affidavit in reply, has pointed out that he had received the interim order by way xerox copy along with a letter of the advocate on 28-11-90 and immediately he had written a letter on the same day to respondent No 4. It is further stated that a peon in the office of the respondent No. 1 was sent to serve the said order on respondent no. 4 at Chanasma ; however, the respondent No. 4 was not available at his residence at Chanasma and therefore the peon had come back to Mehsana and reported the matter to respondent No. 1 on the morning of 29th november 1990. Therefore, the respondent No. 1 had sent his senior clerk mr. K. J. Makwana along with the said peon to serve the said interim order on respondent No. 4 before the commencement of the meeting. Thus, he had made bis best efforts to serve the respondent No. 4 with the interim order and, according to respondent No. 1, he bas not committed any disobedience much less wilful disobedience of the order. ( 3 ) THE respondent No. 4 in his affidavit in reply has stated that the said order came to be served upon him only after the meeting was over at about 13. 30 hours. The statement of the peon, who had gone to serve the said order on respondent No. 4, shows that he could not contact respondent no.
( 3 ) THE respondent No. 4 in his affidavit in reply has stated that the said order came to be served upon him only after the meeting was over at about 13. 30 hours. The statement of the peon, who had gone to serve the said order on respondent No. 4, shows that he could not contact respondent no. 4 at the place of the meeting and he stated that about 12. 20 noon the said order was affixed on the Notice Board on the ground floor of the Visranti gruh. He further stated that be could not contact the respondent No. 4 upto the time of the meeting and thereafter when he went upstairs at the place of meeting at 1. 00 pm. after the scheduled time of the meeting, the doors of the meeting hall were closed and. therefore, he could not serve the order to respondent No 4 and the said order could be served only after the meeting was over. ( 4 ) THE learned Counsel for the petitioner submitted that the respondent no. 1 who had passed order for convening the meeting was served with the order staying the operation of the order and, therefore, it was his duty to see that the order is complied with and the meeting is not held and hence when he knew that the interim order was operating against holding of the meeting, he is guilty of Contempt of Court because he had not seen that the meeting was not held. It is not possible to uphold this contention because be has done whatever he could reasonably have done in the circumstances of the case to communicate the interim order to respondent No. 4 who was directed to hold the meeting. He had sent the stay order to the office of the respondent No. 4 as well as at his residence. He had also sent telephonic message to Taluka Panchayat Office where the respondent No. 4 is working as Extension Officer. But the respondent No. 4 was neither in the office nor at his residence as he was out on census duty and, therefore, on 28th november 1990 he could not be served with the interim order. On 29th november 1990 the respondent No 1 had directed not only the peon, but also a senior clerk to see that the order is served on the respondent No. 4.
On 29th november 1990 the respondent No 1 had directed not only the peon, but also a senior clerk to see that the order is served on the respondent No. 4. Therefore, respondent No. 1 has done all that could be reasonably expected from him to see that the order is communicated to the proper person and is complied with. Merely because the order could not be served on respondent no. 4 inspite of all the attempts made by the respondent No. 1, it cannot be said that respondent No. 1 has in any manner committed breach or wilful breach of the interim order. ( 5 ) AS far as respondent Nos. 2 and 3, Head Clerk and By T. D. 0. respectively, are concerned there are no allegation whatsoever that they have committed any breach of the said order. The respondent No. 4 has held and conducted the meeting on 29-11-1990 even though an order of 8th November 1990 directing holding of that meeting was stayed. The question, however, is whether he had any knowledge of such order. If it is not found that he had knowledge of such order, it cannot be said that he has committed any deliberate or wilful of the interim order. Deliberate and wilful act presupposes knowledge of the interim. order of which the breach is committed. In the present case it is not shown by the petitioner that the respondent No. 4 had the knowledge. On the contrary, the affidavit of respondent No. 1 shows that inspite of all the attempts respondent No. 4 could not be intimated. The respondent No. 4 has also filed affidavit stating that the intimation was given to him only after the meeting was over. The report of the peon who had served the order also states that it was actually served on respondent No. 4 after the meeting was over. The placing of the notice on the Notice Board on the ground floor of the Visram Gruh cannot be said to be notice to respondent No. 4 unless there is an evidence to show that respondent No. 4 had actual knowledge, direct or indirect, of the said order. In absence of any such evidence it cannot be said that respondent No. 4 bad knowledge of the said order and inspite of such knowledge he had conducted the meeting.
In absence of any such evidence it cannot be said that respondent No. 4 bad knowledge of the said order and inspite of such knowledge he had conducted the meeting. Therefore, none of the respondents can be said to have committed wilful breach or disobedience of the order passed by the Additional Registrar of cooperative Societies, Gujarat State. Hence this petition is dismissed. Rule discharged with no order as to costs. Petition dismissed. .