AI Structured Summary
Not yet generated for this judgment
Judgment
A. P. Lavande, J.—Heard learned Counsel for the parties. Both these applications are being disposed of by common order since the facts and issues of law involved in both the applications are identical. The applicant - Goa State C0-operative Housing Finance and Federation Limited (''the applicant'' for short) granted loans to the members of Alabhya Co-operative Housing Society and the Society in turn mortgaged the property towards the loans advanced to the members for construction of flats / villas in the mortgaged property. According to applicant, an amount of Rs.1,59,95,000/-was sanctioned and out of which an amount of Rs.1,43,95,500/-was disbursed by agreement entered into with the said society and Meghavi Developers Private Limited. The Developers agreed to sell the row-houses to respondent no.1 in both the applications. Respondent no.2 in Miscellaneous Civil Application no.206/10 is the wife of respondent no.1. In writ petition no.294/2007, the applicant was respondent no.7 and in writ petition no.349/2007, the applicant was respondent no.10. In both the writ petitions, the respondents herein were the petitioners.
On 14th February, 2002, Registrar of Co-operative Societies passed an order appointing Shri V. B. Devidas, Senior Auditor to conduct an enquiry into the working, financial position and management and affairs of society right from its inception since the society had failed to submit statement of accounts for undertaking audit of the society. On 6th April, 2002, Shri Devidas submitted a report that the affairs of the society were mismanaged.
On 2nd July, 2002, the Registrar appointed Administrator superseding the managing committee of the society. On 24th September, 2002, the Administrator issued a public notice inviting claims from public against the society by way of ownership rights, creditors, debtors etc. The Registrar by order dated 27th July, 2003, modified the earlier order and appointed a Committee of Administrators. Thereafter, on 19th November, 2004, the applicant was appointed liquidator in exercise of power vested u/s 103(1) of the Maharashtra Co-operative Societies Act(''The Act'' for short) as applicable to State of Goa. The Board of application, by a resolution dated 27th November, 2004 appointed Shri P. G. Kenkare, Vice-Chairman to act for and on behalf of the applicant and discharge the function of liquidator. Thereafter, the liquidator issued a public notice in terms of Section 103 of the Act inviting claims against the society from persons and also its members by way of ownership rights, creditors, debtors etc. Pursuant to the said notice, objections were filed. The respondents in both these applications, filed their objections. By order dated 7th June, 2005, the liquidator dismissed the objections of the respondents in both the applications.
Respondent no.1 in Miscellaneous Civil Application no.206/2010 along with others filed Co-operative Appeal No.4/2005 and respondent in other application filed Co-operative Appeal no.6/2005 before the Registrar challenging the order passed by liquidator in terms of Section 105 of the Act. The Registrar by common judgment and order dated 22nd February, 2007 dismissed all the appeals thereby dismissing the objections of the appellants therein including the respondents in the present applications. The respondents herein filed two writ petitions namely writ petition No.294/2007 and 349/2007 challenging the order dated 22nd February, 2007 passed by the Registrar. The writ petitions were taken up for admission by the learned Single Judge of this Court. The applicant herein filed affidavit-in-reply to which affidavit-in-rejoinder was filed by the respondents herein. On 2nd November, 2007, Minutes of Order prepared by the applicant and the respondents herein were filed. In both the matter, identical minutes of order were filed. They read thus :
"Minutes of Order"
The possession of the premises claimed by the petitioner shall be recovered by the liquidator the respondent no.7 herein only by filing a civil suit before the competent civil court for eviction and other appropriate reliefs and by no other method.
The parties shall be at liberty to raise all contentions and pleas before the civil court.
In view of the aforesaid the impugned order passed by the Liquidator dated 7/6//05 and the Registrar dated 22/2/2007 are not interfered with though it is made clear that it will be open for the petitioner to contend that the said orders are without jurisdiction and are not binding on him or on the civil court.
The writ petition shall be disposed of in aforesaid terms. Parties to bear their own costs.
By the present applications, the applicant seeks recall of the order on various grounds
Mr. Dessai, learned Senior Counsel for the recall of the order on various grounds. applicant submitted that the order of the liquidator merged in the order of the Registrar and as such, the applicant had no jurisdiction to enter into any compromise. Learned Counsel further submitted that the jurisdiction of the Civil Court is expressly barred u/s 107 and 116 of the Act to entertain any dispute including the one which has been agreed to be referred to the Civil Court by virtue of the consent terms. He further submitted that the applicant was discharging quasi judicial functions under the Act and order passed by it having merged in the order passed by the Registrar, the applicant could not have entered into the compromise and as such, the orders passed by this Court disposing of both the petitions in terms of consent terms filed, deserve to be recalled and both the writ petitions deserves to be restored. In support of his submissions, Mr. Dessai relied upon the following judgments :
(i) A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, .
(ii) Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others, .
(iii) Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, .
(iv) Prithvichand Ramchand Sablok Vs. S.Y. Shinde, .
(v) Kiran Singh and Others Vs. Chaman Paswan and Others, .
(vi) Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, .
(vii) United India Insurance Co. Ltd. Vs. Rajendra Singh and Others, .
(viii) M/s. A.V.R. and Co. and others Vs. Fairfield Co-operative Housing Society Ltd. and others, .
(ix) M/s. Electrical Cable Development Association Vs. M/s. Arun Commercial Premises Cooperative Housing Society Ltd. And Another, .
(x) Kamla Gobindram Buxani Vs. Badriprasad Pandey; AIR 1975 Bombay 187.
(xi) M/s. Leong and another Vs. Smt. Jinabai Gulrajani; AIR 1981 Bombay 244.
(xii) Satguru Construction Co. Pvt. Ltd., Shri Gopal Rameshwarlal Khetan (Director) and Shri Vijay Khetan (Director) Vs. Greater Bombay Co-operative Bank Ltd., .
(xiii) Vice Chairman of Area Canteen Vs. Their Workmen and Another, .
(xiv) Kusum Debi Jhinjhani Vs. Pushpa Devi Khurda; AIR 1990 Calcutta 204.
(xv) Mukund Ram Vs. Registrar; AIR 1962 Patna 338.
Mr. Chaudhari, learned Counsel for the respondents in both the applications submitted that the applications are not maintainable at the instance of the applicant, which was discharging quasi judicial functions. He further submitted that the applicant had authority to enter into compromise in terms of Section 105 of the Act. Learned Counsel further submitted that the jurisdiction of the Civil Court is not barred and the applicant having agreed to go before the Civil Court, cannot now turn down and contend that minutes of order and the orders passed by this Court disposing of the writ petitions on the basis of minutes of order deserve to be recalled. In support of his submissions, Mr. Chaudhari relied upon following authorities :
(i) Nagar Nigam Aligarh Vs. Udai Singh; AIR 2003 Allahabad 34.
(ii) Kishan Hanuji Jambhulkar Vs. State of Maharashtra; 2003(5) Mh.L.J. 472
(iii) Kalabai Pramod Raut Vs. Selection Committee, Anganwadi Sewika and Helper and Others, .
(iv) The Executive President and Others Vs. Bhaskar Bhagwant Yadav and Others, .
(v) Surya Dev Rai Vs. Ram Chander Rai; 2003(4)All MR761 (S.C.).
(vi) Dalsing Rajput Vs. State of Maharashtra and Others, .
(vii) Harish Commercial Premises Co-op Soc. Ltd. Vs. Varsha Dinesh Joshi and Others, .
(viii) The Belganda Sahakari Sakhar Karkhana Vs. Keshav Rajaram Patil; 2000 Mh. Cc-op.J. 346.
(ix) Sahara Fabrics Pvt. Limited and Others Vs. Kailash Ramprashad Mehra and Others, .
(x) Suresh K. Mehta Vs. S. B. Chincholikar; 2000 Mh.Co-op. J. 214.
(xi) The Deccan Merchants Co-operative Bank Ltd. Vs. M/s. Dalichand Jugraj Jain; 2000 Mh.Co-op.J. 545.
(xii) Hindustan Petroleum Corporation Ltd. Vs. Shyam Co-operative Housing Society; 2000 Mh.Co-op.J. 611.
(xiii) Ramchandra Harischandra Vatkar Vs. Jawaharnagar Co-op. Hsg. Scy. Ltd; 2003 C.T.J. 264.
(xiv) Lalit Kumar Mohta Vs. Official Liquidator, High Court of Judicature at Bombay, Nagpur Bench and Others, .
I have considered the rival submissions and perused the record and the judgments relied upon.
Learned Counsel appearing for the applicant submitted that the applicant was discharging quasi judicial functions, which position has not been disputed by learned Counsel for the respondents. The same is borne out from the provisions of the Act.
The applicant while entertaining objections/ claims filed by the respondents herein was discharging quasi judicial function. Indisputably, by order dated 7th June, 2005 passed by the applicant, all the objections were rejected. It is also not in dispute that the Registrar in exercise of appellate jurisdiction in terms of Section 105 of the Act dismissed Co-operative Appeal nos. 4 and 6 of 2005 filed by the respondents challenging the orders passed by the applicant thereby upholding the orders passed by the applicant. Obviously, therefore, the orders passed by the applicant got merged in the order passed by the Appellate Authority. This being the position, in my considered opinion, the applicant had no jurisdiction to enter into any compromise with the respondents. The applicant was discharging quasi judicial functions and the applicant had no ''lis'' with the respondents and as such, the applicant had no jurisdiction to enter into compromise with the respondents, the effect of which was setting aside the order passed by the Registrar, who was the Appellate Authority against the order passed by the applicant. A Tribunal discharging quasi judicial function can never enter into a compromise with the person having a ''lis'' with third person virtually setting aside the order passed by the Appellate Authority. This being the position, the necessary sequitur is that the compromise entered into between the parties was patently without jurisdiction. It appears that the learned Judge of this Court while disposing of the writ petitions in terms of minutes of order did not notice this fact, and passed order disposing of both the writ petitions in terms of minutes of order. The minutes of order could not have been filed. Moreover, the compromise was not lawful and, therefore, in terms of section 23 of the Contract Act also the consent terms and the orders passed thereon deserve to be recalled.
In the case of Prithvichand Sablok (supra), the Apex Court held that the Court has to ensure that the consent terms filed in a suit are consistent with the relevant laws and reach an independent satisfaction. The Court will not add its seal to compromise terms unless compromise terms are consistent with the relevant law. The ratio of the said judgment is also applicable in the present case. It appears that the learned Single Judge of this Court did not notice the legal position. The compromise between the applicant and the respondents was not in accordance with law in as much as by the consent terms, the order of Registrar-the Appellate Authority was virtually set aside, an exercise which was impossible in law. Moreover, it is pertinent to note that while entering into compromise, the order dated 22nd February, 2007 passed by the Registrar was not interfered with and the petitioner therein in the writ petition was entitled to contend in the suit that the said orders are without jurisdiction and not binding on him or on the Civil Court. The applicant could not have been party to such a compromise. The applicant being the Lower Authority could not have agreed to such a compromise by which the respondents herein were permitted to challenge the order passed by the Registrar-the Appellate Authority on the ground that it was without jurisdiction. Such an agreement could not have been entered into between the applicant and the respondents herein. One more factor, which weighs in favour of the applicant is that no relief was sought in respect of the order passed by the applicant herein and as such, one fails to understand as to how the applicant could have entered into compromise and invited an order in terms of minutes of order signed by the applicant and the respondents herein.
I do not deem it necessary to deal with the other contentions advanced on behalf of the applicant as well as all the judgments cited by both sides in view of the findings recorded hereinabove.
In view of the above discussion, both the applications are allowed. The orders dated 2nd November, 2007 passed in W.P. Nos.294/2007 and 349/2007 disposing of the writ petitions in terms of minutes of order filed in both the writ petitions, are recalled and the writ petitions are restored. The writ petitions shall be placed before the appropriate bench. Needless to mention that all the rival contentions of the parties in the writ petitions are kept open.
I have set aside the order dated 2nd November, 2007 passed by this Court disposing of the writ petitions in terms of minutes of order on the ground that the parties could not have entered into a compromise and the compromise was not legal. However, the fact remains that it was the applicant, who initially agreed to sign the consent terms and got the writ petitions disposed of in terms of minutes of order. Therefore, it would be just and proper to saddle the applicant with costs, which are quantified at Rs.10,000/-each in both the applications. The applicant shall deposit the costs in favour of the Goa State Legal Services Authority, Panaji within a period of four weeks. At this stage, Mr. Chaudhari, learned Counsel for the respondents in both the applications, seeks interim protection. Having regard to the nature of the order passed, I am not inclined to grant any interim relief.