Judgment : 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. 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 created a charge of the suit land u/s. 48 of the MCS Act and the sale deed in favour of the appellant was executed thereafter, on 29.04.2002. He, therefore, submitted that charge on the property was created in the office of the society on 14.12.2001 as per section 48 of the MCS Act. The action in question clearly touched the business the society and, therefore, notice under section 164 of the Maharashtra Cooperative Societies Act was essential or a mandatory requirement in the absence of which the suit must fail. The action in question clearly touched the business the society and, therefore, notice under section 164 of the Maharashtra Cooperative Societies Act was essential or a mandatory requirement in the absence of which the suit must fail. He then argued that though mortgage was not mutated in 7/12 extract before sale deed was executed, the same was surely recorded thereafter on 25.11.2003 and, therefore, there was a charge recorded in the record of revenue department. He then submitted that at any rate, the appellant had in fact issued notice under section 164 of the MCS Act but without waiting for the period of two months, he filed the suit which is in contravention of Sec. 164 of the MCS Act. CONSIDERATION: 6. Upon hearing the learned counsel for rival parties and upon perusal of the entire record, the following substantial questions of law arise for my determination:1) Whether compliance of the provisions of Section 48 of the MCS Act, and Rule 48 (5) of MCS Rules,1961 is mandatory for lending cooperative society before claiming protection/charge on immovable property of members ? .Yes. 2) Whether it was necessary/mandatory for the appellant/plaintiff to serve the notice u/s 164 of the MCS Act before filing RCS No. 87/2012? ..No 3) Whether the appellant/ plaintiff having served the notice under section 164 of the Act were estopped in law in filing the suit before expiration of statutory period of two months contemplated by he said provision? ..No 4) Whether for filing the suit u/s. 38 of the Specific Relief Act, prior notice u/s 164 of the MCS Act is mandatory? No. As to Question No.(1): Following are the admitted facts; 7. Raju Gopikisan Rathi made an application to the respondent no.1Cooperative Credit Society on 14.12.2001 for grant of loan by proposing to mortgage the suit land which was owned by him. Raju Rathi, however, executed a sale deed dated 19.4.2002 of the suit property in favour of the appellant/plaintiff. The charge as per the mortgage proposed by Raju Rathi was recorded for the first time on 25.11.2003 by respondent no.1 Credit society, by mutating accordingly in the revenue record of the Government i.e. 7/12 extract. To repeat, the recording was made after the sale deed was executed on 19.4.2002 by Raju Rathi in favour of the appellant. The charge as per the mortgage proposed by Raju Rathi was recorded for the first time on 25.11.2003 by respondent no.1 Credit society, by mutating accordingly in the revenue record of the Government i.e. 7/12 extract. To repeat, the recording was made after the sale deed was executed on 19.4.2002 by Raju Rathi in favour of the appellant. The appellant had before purchasing the suit property, by all known methods, ascertained the saleable interest of his vendor Raju Rathi by verifying the revenue records etc. and that there was no charge mentioned anywhere in the revenue records. Raju Rathi made the mortgage with the society on 17.6.2002 for the first time i.e. after almost two months of the sale deed executed in favour of the appellant. It is thus clear from the above facts that the mortgage was made two months after the sale deed was executed and actually mutated on 25.11.2003 in the revenue records. Therefore, the appellant was not at all aware about the future course of action which Raju Rathi had decided to adopt after execution of sale deed. He is, therefore, at all not concerned with the mortgage made with the respondent no.1Credit society. The submission made by Mr. Dharamadhikari, learned counsel for respondents, that application for loan dated 14.12.2001 must be held to be creation of charge in the office of the respondent no.1 to be stated, must be rejected outright. What is relevant is the entry of charge and the date thereof in the revenue record of the Government and not in the office of the society. At any rate, mere filing of application for loan on 14.12.2001 cannot be said to be charge under section 48 and Rule 48 (5) of the Act and the Rules. Section 48 of the MCS Act reads thus: “48. Charge on immovable property of members borrowing from certain societies: Notwithstanding anything contained in this Act or in any other law for the time being in force, (a) any person who makes an application to a society of which he is a member, for a loan shall, if he owns any land or has interest in any land as a tenant, make a declaration in the form prescribed. Such declaration shall state that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of the loan which the society may make to the member in pursuance of the application, and for all future advances ( if any) required by him which the society may make to him such member, subject to such maximum as may be determined by the society, together with interest on which amount of the loan and advances; (b) any person who has taken a loan from a society of which he is member, before the date of the coming into force of this Act, and who owns any land or has interest in land as a tenant, and who has not already made such a declaration before the aforesaid date shall, as soon as possible thereafter, make a declaration in the form and to the effect referred to in clause (a); and no such person shall, unless and until he has made such declaration, be entitled to exercise any right, as a member of the society; (c) a declaration made under clause (a) or (b) may be varied at any time by a member, with the consent of the society in favour of which such charge is created; (d) No member shall alienate the whole or any part of the land or interest therein, specified in the declaration made under clause (a) or (b) until the whole amount borrowed by the member together with interest thereon, is repaid in full: Provided that, it shall be lawful to a member to execute a mortgage bond ( in respect of such land or any part thereof in favour of (a Cooperative Agriculture and Rural Multipurpose Development Bank) or of the State Government ) under the Bombay Canal Rules made under the Bombay Irrigation Act, 1879 or under any corresponding law for the time being in force for the supply of water from a canal to such land, or Provided further that, if a part of the amount borrowed by a member is paid ( the society with the approval of the Central Bank to which it may be indebted may, on an application from the member, release from the charge created under the declaration made under clause (a) or (b), such part of the movable or immovable property specified in the said declaration, as it may deem proper, with due regard to the security of the balance of the amount remaining outstanding from the member ; (e) any alienation made in contravention of the provisions of clause (d) shall be void; (f) (Subject to all claims of the Government in respect of land revenue or any money recoverable as land revenue, and al claims of the (Cooperative Agriculture and Rural Multipurpose Development Bank) in respect of its dues, in either case, whether prior in time or subsequent) and to the charge (if any) created under an award made under the Bombay Agricultural Debtors Relief Act, 1947 or any corresponding law for the time being in force in any part of the State, there shall be first charge in favour of the society on the land or interest specified in the declaration made under clause (a) or (b) , for and to extent of the dues owning ( by the member ) on account of the loan. (g) and in particular, notwithstanding anything contained in (Chapter X of the Maharashtra Land Revenue Code, 1966), the Record of Rights maintained thereunder shall also include the particulars of every charge on land or interest created under a declaration under clause (a) or (b) ( and also the particulars of extinction of such charge.). Explanation: For the purposes of this section, the expression “society” means (i) any resource society the majority of the members of which are agriculturists and the primary object of which is to obtain credit for its members, or (ii) any society, or any society of the class of societies, specified in this behalf by the State Government, by a general or special order. Rule 48 of Maharashtra Cooperative Societies Rules, 1961 reads thus: “48. Form of declarations to be made by members borrowing loans from certain societies and conditions on which any charge in favour of a society shall be satisfied: (1) A declaration to be made under clauses (a) and (b) of Section 48 shall be in Form ‘L’. (2) A register of such declarations shall be kept by the society in Form ‘M’. (3) A charge on any immovable property created by a member in favour of a society for amounts borrowed or likely to be borrowed by him, from time to time, shall, subject to the provisions of clauses (c) and (d) of Section 48 continue in force till the person creating the charge ceases to be a member of the society. (4) Where a member of a society creates a charge on his land or on his interest in any land as a tenant by declaration under Section 48, the society may, if compelled to make use of such property for the recovery of the loan granted to such member against the security of such property or interest in the property, utilise the whole or any portion of such property which may be sufficient to satisfy the amount due with interest and any incidental expenses incurred in that connection. (5) Where a charge is created by a member on his land or on his interest in any land as a tenant by declaration under section 48, the society shall record or cause to record such particulars of charge in the Record of Rights maintained by the village officers of the village where such property is situated. (5) Where a charge is created by a member on his land or on his interest in any land as a tenant by declaration under section 48, the society shall record or cause to record such particulars of charge in the Record of Rights maintained by the village officers of the village where such property is situated. Such recording of the charge in the Record of Rights of the village shall be treated as a reasonable notice of such charge created under Section 48.” 8. A careful reading of Section 48 of the MCS Act and Rule 48 of the Rules framed thereunder, to my mind, manifests that for knowledge to the people at large about the charge over immovable property or for claiming protection of Section 48 of the Act, it would be mandatory for the society to get the charge on immovable property created or recorded in the record of rights maintained by the village officers of the village where the property situated. Subrule 5 clearly says that if such charge is shown in the record of rights the same shall be treated as a reasonable notice of such charge created under section 48. Therefore, unless and until there is compliance of these two provisions, namely Section 48 and Rule 48 (5), the people at large cannot be expected to know about the charge, if any, on immovable property. In other words, if a society wants to claim protection or benefit of Section 48 of the MCS Act, the same can be obtained only from the date the charge is actually recorded in the record of rights and not otherwise. To sum up, in answer to Question No.1, I hold that provisions of Section 48 and Rule 48 (5) are mandatory in nature for a Cooperative Society if a cooperative society wants to claim benefit /protection of the said provisions. I,therefore, answer the question No.1 in affirmative. 9. As to Question No. 2: It is not in dispute that the suit was filed by the appellant/ plaintiff for claiming permanent injunction against the respondent no.1Credit society in the matter of proposed attachment of suit property purchased by the plaintiff prior to the mortgage thereof created by the original owner /vendorRaju Rathi with the Society. 9. As to Question No. 2: It is not in dispute that the suit was filed by the appellant/ plaintiff for claiming permanent injunction against the respondent no.1Credit society in the matter of proposed attachment of suit property purchased by the plaintiff prior to the mortgage thereof created by the original owner /vendorRaju Rathi with the Society. To repeat, Raju Rathi, executed the sale deed in favour of the appellant on 19.4.2002 in respect of the suit property while the charge contemplated by Section 48 of the MCS Act was actually inserted in the record of rights for the first time on 25.11.2003 and never before. Thus, the appellant/ plaintiff was not at all concerned with the respondent no.1 society or the loan obtained by Raju Rathi after he sold the suit property to the appellant. The appellant, in fact, has no concern with the society or any transaction with the respondent no.1 society. The appellant wanted to exercise his independent civil right for protecting the suit property from attachment by the Credit Society since subsequent to the sale deed, Raju Rathi had mortgaged the suit property with respondent no.1society. It appears that the respondent no.1society did not take the search report about the status of the suit property and in a most casual and cursory manner obtained the mortgage of the suit property which was already sold. I have already held that mere filing of the application for loan on 14.12.2001 does not mean creation of any charge contemplated by Sec.48 and Rule 48(5) supra. Section 164 of the MCS Act reads thus: “Sec. 164 : Notice necessary in suits: No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left.” At this stage, it would be appropriate to refer to Section 91 of the MCS Act. Perusal of Section 91 shows that it also uses the expression “act touching the business of society”. Perusal of Section 91 shows that it also uses the expression “act touching the business of society”. In the case of Deccan Merchants Cooperative Bank Ltd. vs. Dalichand Jugraj Jain and others : AIR 1969 SC 1320 , the Supreme Court held that the expression “business” in Section 91 does not mean affairs of the society and the said expression has been used in a narrower sense means the actual trading or commercial or other similar business activity of the society which the society is authorized to enter under the Act and the Rules and its bye laws. It is well settled legal position of interpretation that when a similar expression is used in different places in a statute, it carries the same meaning unless contrary intention is disclosed. The institution of the suit claiming perpetual injunction to protect the civil right of the appellant qua the suit property cannot be said to be either an ‘act’ touching the business of the society even for that matter, ‘dispute’ touching the business of the society. It must always be construed that the ‘act’ touching the business of the society means ‘legal’ act for attracting the provision of Sec. 164 of the Act. The act of the society in mortgaging the suit property which was already sold to the appellant who was not even a member of the society cannot fall in the definition of Sec. 164 of the Act. Therefore, the provisions of Section 164 will have no application in addition because the plaintiff wants to exercise his independent civil right. In the light of the above decision of the Apex Court and the facts of the present case, I am of the considered opinion, that notice u/s 164 for filing the suit was not at all necessary. The Question No.2,therefore will have to be answered in negative. As to Question No.3: 10. It is true that the present appellant had given notice under section 164 of the MCS Act before filing the suit but then without waiting for a period of two months he had filed the suit in the Civil Court. The Question No.2,therefore will have to be answered in negative. As to Question No.3: 10. It is true that the present appellant had given notice under section 164 of the MCS Act before filing the suit but then without waiting for a period of two months he had filed the suit in the Civil Court. I find that when notice u/s 164 of the MCS Act was not at all necessary before filing the suit in a civil court as held by me above, even if the respondents/plaintiffs, in fact, had given such notice but did not wait for two months, there cannot be any estoppel against law when the legal position that no such notice is necessary for filing the suit as a prerequisite to maintain the suit. Whether or not the plaintiffs had issued notice u/s 164 or he did not wait for the period of two months, would hence make no difference at all. When the law does not require issuance of notice u/s 164 of the MCS Act at all, to file the suit before expiry of the period would be of no consequence. As such, Question No.3 is answered in negative. As to Question No.4 : 11. The appellant had filed the suit under section 38 of the Specific Relief Act for grant of perpetual injunction against the respondent no.1society in respect of the suit property legally owned by him upon valid sale deed being executed in his favour by Raju Rathi. Reading of the plaint and the prayers made by the plaintiff clearly show that he has no concern with the respondent no.1 society nor he was a member of the respondent no.1 society. He purchased the suit property after seeing the Government records which did not show any charge on the suit property. He wanted to exercise his civil right in the civil court by filing the suit. The suit had nothing to do with the any legal act touching the business of society as stated in Section 164 of the Act. On the contrary, it is wellsettled legal position that suit under section 38 of the Specific Relief Act for perpetual injunction is clearly out of the purview of such type of provisions. I therefore, hold that the suit u/s 38 filed by the appellant/plaintiff in this case was not required to be preceded by notice u/s 164 of the Act. 12. I therefore, hold that the suit u/s 38 filed by the appellant/plaintiff in this case was not required to be preceded by notice u/s 164 of the Act. 12. Having answered all the questions as above, I find that the respondent no.1 society is unnecessarily harassing the appellant/ plaintiff without even bothering to look that the fault clearly lay with the respondent no.1 society in not taking the search report in respect of execution of sale deed in favour of the appellant on 19.4.2002 as against the charge being recorded in the revenue records on the suit property on 25.11.2003 for the first time. The respondent no.1 society is not at all justified in harassing the appellant when he has innocently and bona fidely and with all care, caution and circumspection purchased the suit property. The appellant/plaintiff is a pensioner and now an agriculturist. It is the respondent no.1 who has intentionally driven him to the court. The fault actually lay with the respondent no.1 society as discussed hereinabove. I, therefore, hold that the respondent no.1 society is guilty of harassing the appellant. Hence I think that respondent no.1 should be saddled with exemplary costs payable to the appellant in the sum of Rs. 10,000/. In the result I make the following order: ORDER 1) Second Appeal No.191/2014 is allowed. 2) The impugned order dated 23.08.2013 below Exh. 15 in Regular Civil Suit No. 87/2012 and the impugned judgment and decree dated 27th March 2014 passed by the District Judge in Regular Civil Appeal No. 34/2013 are set aside. 3) Application (Exh.15) in Regular Civil Suit No.87/2012 filed by the respondent no.1 is rejected. 4) The respondent nos.1 and 2 shall pay costs in the sum of Rs.10,000/(rupees then thousand ) to the appellant. 5) The trial Court is directed to decide Regular Civil Suit No. 87/2012 on merits, as expeditiously as possible and in any case, within a period of one year.