N. Lakshman Special Officer Karnataka State Khadi And Village Industries Worker’s House Building Co-Operative Society Ltd. v. Lakshmi Devi W/O Patalappa
2018-12-07
ALOK ARADHE
body2018
DigiLaw.ai
ORDER : Sri. Pradeep Singh and H.S.V. Murthy, learned counsel for the petitioner. Sri. K.S. Harish, learned counsel for the respondent No.1. Sri. Suresh S. Lokre and shravan S. Lokre, learned counsel for the respondent No.2. Sri. Zulfikar kumar sharik and S. Lakshminarayana Reddy, learned counsel for the respondent No.3. 2. Since, common questions of law and fact arise for determination in these bunch of petitions, they were heard analogously and are being decided by this common order. In these petitions, the petitioner who is defendant No.9 before the Trial Court has assailed the validity of the order date 25.07.2018, by which preliminary issue with regard to maintainability of the suits has been answered in the affirmative and the suits have been held to be maintainable. The background facts leading to filing of these bunch of petitions are as follows: The respondent No.1 has filed civil suits seeking the relief of declaration and permanent injunction. In the aforesaid civil suits, defendants Nos.4 and 5 who were President and Secretary of the Karnataka State Khadi and Village Industries House Building Cooperative Societies Ltd., were impleaded as defendants. However, during the pendency of the civil suits, the Society was superseded and an officer in charge was appointed to manage the affairs of the Society. The officer in charge filed an applications for his impleadment in the suit and was impleaded as defendant No.9 in the suit. He filed applications Under Order VII Rule 11 of the Code of Civil Procedure, 1908 ((hereinafter referred to as ‘the Code’ for short) on the ground that the suits are not maintainable as the plaintiffs have failed to serve a notice under Section 125 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as ‘the Act’ for short) . The aforesaid applications were rejected by the Trial Court by an order dated 17.12.2016, which was subject matter of challenge in a bunch of revision petitions, which were decided by a Bench of this Court by a common order dated 07.02.2018. It was inter alia held that from the averments made in the plaint, the suits do not appear to be barred by law and the orders passed by the Trial Court rejecting the applications under Order VII Rule 11 of the Code were upheld.
It was inter alia held that from the averments made in the plaint, the suits do not appear to be barred by law and the orders passed by the Trial Court rejecting the applications under Order VII Rule 11 of the Code were upheld. However, it was held that it would be open for the petitioner to raise preliminary objection with regard to maintainability of the suit after framing of the issues by the Trial Court and the Trial Court shall consider the preliminary objection and pass appropriate orders in accordance with law. 3. The petitioner thereafter filed the written statements. The Trial Court on the basis of the pleadings of the parties, by an order dated 13.03.2018, framed issues and issue No.8 was framed with regard to maintainability of the suit in view of non-compliance with Section 125 of the Act. The Trial Court by impugned order dated 25.07.2018, held the suit to be maintainable. In the aforesaid factual background, the petitioner has approached this Court. 4. Learned counsel for the petitioner submitted that from perusal of the plaints as a whole, it is evident that President and Secretary of the Society were parties and in view of the relief’s claimed in the suits, a notice under Section 125 of the Act was required to be served, which was admittedly not served. It is further submitted that plaintiffs had sought the relief, which relates to the business of the Society and since the relief’s sought for by the plaintiffs relates to the business of the Society, the provisions of Section 125 of the Act ought to have been complied with. It is also argued that the Act of omission if complains of Constitution, Management or business of the Society, the service of notice under Section 125 of the Act is mandatory. In support of aforesaid submissions, reference has been made to a decision in the case of ‘THE AROGYANAGAR CO-OPERATIVE HOUSING SOCIETY LTD. AND ANOTHER VS. FAKIRAGOUDA AND ANOTHER’, ILR 2004 KAR 1445 and full Bench decision of this Court in ‘KRISHI MATTU KSHEERA UTPADAKAK VIVIDHODDESHA SAHAKARI SANGH NIYAMIT VS. SOHANLAL’, ILR 1992 KAR 3587. 5. On the other hand, learned counsel for the plaintiffs submitted that no relief has been sought against the Society and the relief’s claimed in the suit in no way pertains to constitution, management or business of the Society.
SOHANLAL’, ILR 1992 KAR 3587. 5. On the other hand, learned counsel for the plaintiffs submitted that no relief has been sought against the Society and the relief’s claimed in the suit in no way pertains to constitution, management or business of the Society. It is also pointed out that defendant Nos.5 & 6 viz., the President and Secretary of the Society themselves have taken a stand in paragraph 21 of the written statement that they are formal parties and they have no role to play in the controversy. It is also urged that Section 125 of the Act has no application to the fact situation of the case. 6. I have considered the submissions made by the learned counsel for the parties and I have perused the record. Before proceeding further it is apposite to notice Section 125 of the Act, which reads as under: 125. Notice necessary in suits – No suit shall be instituted against co-operative society or any of its officers in respect of any act touching the constitution, management order 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. 7. Thus, if a suit is instituted against a Cooperative Society or any of its office bearers in respect of any act touching the constitution, management or business of the Society, the notice is required to be issued as mandated under Section 125 of the Act. 8. At this stage, I may advert to the averments made in the plaint. In the plaint, it is averred that defendant Nos.1 to 4 are brothers and sisters. The deceased Hanumakka is the mother of defendant Nos.1 to 4. Defendant Nos.2 to 4 have been arrayed as parties in the suit as legal representatives of deceased Hanumakka. The defendant Nos.7 and 8 are the subsequent purchasers of the portion of the suit lands from defendant No.1.
The deceased Hanumakka is the mother of defendant Nos.1 to 4. Defendant Nos.2 to 4 have been arrayed as parties in the suit as legal representatives of deceased Hanumakka. The defendant Nos.7 and 8 are the subsequent purchasers of the portion of the suit lands from defendant No.1. it is further pleaded that defendant No.1 and deceased Hanumakka had executed a GPA on 03.08.1992 in favour of defendant Nos.5 and 6 viz., the President and Secretary of the Society, by which they were authorized to develop and alienate the sites in the suit property. The defendant No.1 and deceased Hanumakka received a Sum of Rs.7,96,250/- as sale consideration from defendants 5 and 6 and executed an agreement for sale dated 03.08.1992, which was registered. Thereafter the names of defendant Nos.5 and 6 appeared in the encumbrance certificate for the suit property. It is also pleaded that defendant No.1 and deceased Hanumakka represented by their Power of Attorney viz., defendant Nos.5 and 6 alienated residential site bearing No.28 i.e., suit schedule ‘A’ property and schedule ‘B’ property through a registered deed dated 10.12.2001 in favour of the plaintiff for a consideration of Rs.2,77,000/-. Accordingly, the name of the plaintiff appeared in Encumbrance Certificates in Form No.15 and the possession certificate has been given to the plaintiff by defendant Nos.5 and 6. However, defendant No.1 to defeat the rights of the parties, once again executed an agreement for sale dated 23.04.2008 in favour of defendant No.8 in respect of 0.27 guntas and 4 guntas Kharab out of 1 acre 13 guntas in Sy.No.9/4 of Jakkur Village, Yelahanka. The defendant No.1 also executed an agreement dated 23.04.2018 in favour of defendant No.9 in respect of 0.26 guntas out of 1 acre 13 guntas of Sy.No.9/4 of Jakkur Village. Thereafter, the names of defendant Nos.7 & 8 appeared in encumbrance certificate in Form No.15. Thus, from averments made in the plaint, it is evident that plaintiffs claim title in respect of the suit properties on the basis of the documents executed by defendants 5 and 6 i.e., President and Secretary of Co-operative Society and the grievance of the plaintiff is against defendant No.1.
Thus, from averments made in the plaint, it is evident that plaintiffs claim title in respect of the suit properties on the basis of the documents executed by defendants 5 and 6 i.e., President and Secretary of Co-operative Society and the grievance of the plaintiff is against defendant No.1. In this context, the reliefs sought for by the plaintiffs need to be noticed, which are reproduced below for facility of reference: (a) To declare that the registered General Power of Attorney dated 03.08.1992 executed by the 1st defendant and deceased Hanumakka in faovur of the defendants 5 and 6 is binding on the defendants. (b) To declare that the registered Sale Deed dated 10.12.2001 in respect of the suit schedule ‘B’ property executed by the 1st defendant and deceased Hanumakka through the power of attorney holders is binding on the defendants. (c) To declare that the two registered Absolute Sale Agreement dated 23.04.2008 executed by the 1st defendant in favour of the defendants 7 and 8 is not binding on the plaintiff. (d) For permanent injunction to restrain the defendants, their agents order anyone acting under them from interfering with the peaceful possession and enjoyment of the suit schedule B property. (e) Costs of the suit and (f) Pass such other order or orders as this Hon’ble Court deems fit to grant in the circumstances of the case, in the interest of justice. Thus, from careful scrutiny of the plaint it is evident that plaintiffs have not sought any relief’s against defendant Nos.5 and 6 in respect of constitution, management or business of the Co30 operative Society, but have placed reliance on the documents executed by the President and Secretary of the Co-operative Society viz., defendant Nos.5 and 6. Therefore, Section 125 of the Act has no application to the obtaining factual matrix of the case. The Trial Court has rightly held that relief claimed in the suit is not based on an act committed by the society. Therefore, the decisions relied on which reliance is placed by the learned counsel for the petitioner in the case of ‘THE AROGYANAGAR CO-OPERATIVE HOUSING SOCIETY LTD. AND ANOTHER VS. FAKIRAGOUDA AND ANOTHER’, and ‘KRISHI MATTU KSHEERA UTPADAKAK VIVIDHODDESHA SAHAKARI SANGH NIYAMIT VS. SOHANLAL’ (supra) have no application to the fact situation of the case. 9.
Therefore, the decisions relied on which reliance is placed by the learned counsel for the petitioner in the case of ‘THE AROGYANAGAR CO-OPERATIVE HOUSING SOCIETY LTD. AND ANOTHER VS. FAKIRAGOUDA AND ANOTHER’, and ‘KRISHI MATTU KSHEERA UTPADAKAK VIVIDHODDESHA SAHAKARI SANGH NIYAMIT VS. SOHANLAL’ (supra) have no application to the fact situation of the case. 9. Even otherwise, it is well settled in law that supervisory jurisdiction of this Court under Section 115 of Code is intended to ensure that justice is done between the parties. This court in exercise of powers under Section 115 of the Code will not interfere with the findings of fact recorded by Trial Court. This court will interfere with the order passed by the Trial Court only when the order is shown to be perverse or dehors any provision of law [See: ’KALIDAS CHUNILAL PATEL VS. (DEAD) BY LEGAL REPRESENTATIVES VS. SAVITAVEN AND OTHERS’, (2016) 12 SCC 544 AND ‘DWARIKA PRASAD VS. NIRMALA AND OTHERS’, (2010) 2 SCC 107 ] 10. In view of preceding analysis, the order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of revisional jurisdiction. In the result, I do not find any merit in these revision petitions, the same fails and are dismissed.